Land and Environment CourtNew South Wales

Case Title: Sweetwater Action Group Inc v Minister ForPlanning

Medium Neutral Citation: [2011] NSWLEC 106

Hearing Date(s): 22-24 June 2011, 25 June 2011 (writtensubmissions)

Decision Date: 7 July 2011

Jurisdiction: Class 4

Before: Biscoe J

Decision: Subject to considering any alternativeorders proposed by the parties to give effectto this judgment:1. Declaration that the decision by the firstrespondent to recommend that theGovernor amend State EnvironmentalPlanning Policy (Major Developments) 2005through the State Environmental PlanningPolicy (Major Developments) Amendment(Huntlee New Town Site) 2010, gazetted on31 December 2010, is void.2. Declaration that State EnvironmentalPlanning Policy (Major Developments)Amendment (Huntlee New Town Site) 2010,gazetted on 31 December 2010, is void.

Catchwords: JUDICIAL REVIEW:-Whether Minister a"planning authority" under cl 6 of StateEnvironmental Planning Policy No 55Remediation of Land (SEPP 55) - whetherSEPP 55 and State Environmental PlanningPolicy (Major Developments) 2005inconsistent - whether Minister'srecommendation to Governor to make aState environmental planning policy (SEPP)justiciable - whether cl6 of.S.EPP 5~ appliedto the Minister - whether MInister failed tocomply with cl 6 - whether failure to comp\y

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with cl 6 of SEPP 55 spells invalidity ofMinister's recommendation decision -whether SEPP is invalid because Minister'srecommendation to Governor to make it wasinvalid - whether planning agreement failedto comply with s 93F(3)(g) of theEnvironmental Planning and AssessmentAct - whether Minister who must haveassumed that it complied thereby took intoaccount an irrelevant consideration orwhether there was jurisdictional error -whether reasonable apprehension of bias byMinister in the form of predetermination ofwhether to recommend that the SEPP bemade.

Legislation Cited: Cessnock Local Environmental Plan 1989

Environmental Planning and AssessmentAct 1979 ss 15, 34 A, 36, 37, 38, 54, 93F-L,145A,1458

Interpretation Act 1987 s 14

Land Acquisition (Just TermsCompensation) Act 1991

Real Property Act 1900

Singleton Local Environmental Plan 1996

State Environmental Planning Policy (MajorDevelopment) 2005

State Environmental Planning Policy No 55"- Remediation of Land

Cases Cited: Attorney General of NSW v World 8estHoldings Ltd [2005] NSWCA 261,63 NSWLR 557

Australians for Sustainable Development Incv Minister for Planning [2011] NSWLEC 33

Council of Civil Service Unions v Minister forthe Civil Service [1985] AC 374

CREEDNZ Inc v Governor-General [1981]NZLR 172

Darling Casino Ltd v Minister for Planning(1995) 86 LGERA 186

Director of Public Prosecutions (SA) v 8[1998] HCA 45, 194 CLR 566

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J

Ebner v Official Trustee in Bankruptcy[2000] HCA 63, 205 CLR 337

F & 0 Bonaccorso Pty Ltd v Canada BayCouncil (No 2) [2007] NSWLEC 537,158 LGERA 250

Franklin v Minister for Town and CountryPlanning [1948] AC 87

Gwandalan Summerland Point Action GroupInc v Minister for Planning[2009] NSWLEC 140, 75 NSWLR 269

Hot Holdings Pty Ltd v Creasy [2002]HCA 51,210 CLR 438

Jarratt v Commissioner of Police (NSW)[2005] HCA 50, 224 CLR 44

Kioa v West [1985] HCA 81,159 CLR 550

Mayfair Trading Co Pty Ltd v Dreyer (1958)101 CLR 428

McGovern v Ku-ring-gai Council[2008] NSWCA 209, 72 NSWLR 504

McGuiness v State of New South Wales[2009] NSWSC 40; 73 NSWLR 104

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40,162 CLR 24

Minister for Immigration and MulticulturalAffairs v Jia Legeng [2001] HCA 17,205 CLR 507

Minister for Local Government v SouthSydney City Council [2002] NSWCA 288,55 NSWLR 381

Minister for Urban Affairs and Planning vRosemount Estates Pty Ltd (1996) 91LGERA 31

Nature Conservation Council of New SouthWales Inc v The Minister Administering theWater Management Act 2000[2005] NSWCA 9, 137 LGERA 320

Oshlack v Rous Water [2011] NSWLEC 73

Parks and Playgrounds Movement Inc vNewcastle City Council [2010]NSWLEC 231,179 LGERA 346

Project Blue Sky Inc v Australian

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Broadcasting Authority [1998] HCA 28,194 CLR 355

Rv Toohey; ex parte Northern Land Council(1981) 151 CLR 170

R v West Coast Council; Ex parte StrahanMotor Inn (1995') 87 LGERA 383

Re Refugee Review Tribunal; Ex parte H[2001] HCA 28, 179 ALR 425

Save the Showground for Sydney Inc vMinister for Urban Affairs and Planning(1997) 95 LGERA 33

Stewart v Ronalds [2009] NSWCA 277,76 NSWLR 99

Transport Action Group Against MotorwaysInc v Roads and Traffic Authority of NewSouth Wales [1999] NSWCA 196,46 NSWLR 598

Tugan Cobaki Alliance Inc v Minister forPlanning [2006] NSWLEC 396

Vanmeld Pty Ltd v Fairfield City Council[1999] NSWCA 6, 46 NSWLR 78

Texts Cited: Aronson, Dyer and Groves, Judicial Reviewof Administrative Action, 4thed (2009),Sydney Lawbook Co

Category: Principal judgment

Parties: Sweetwater Action Group Incorporated(Applicant)Minister for Planning (First Respondent)Huntlee Pty Ltd (Second Respondent)

Representation

- Counsel: Ms C Adamson SC with Mr J Hutton(Applicant)Mr S Free (First Respondent)Or J Griffiths SC with Ms S Pritchard

- Solicitors: Environmental Defender's Office of NewSouth Wales (Applicant)Department of Planning & Infrastructure(First Respondent)Corrs Chambers Westgarth (SecondRespondent)

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File number: 40245 of 2011

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JUDGMENT

Contents

INTRODUCTION 1

BACKGROUND FACTS 6The first State Significant Site request 6The 2009 Proceedings 11The second State Significant Site request 13The third State Significant Site request 21The 2010 Agreement 27The Recommendation and SEPP Amendment 34

GROUND 1: NON-COMPLIANCEWITH SEPP 55 43Applicability of cl 6: Whether the Minister was a 49relevant planning authorityApplicability of cl 6: Preparation of the Huntlee MD 64SEPP AmendmentInconsistency 68Compliance with cl 6(2) of SEPP 55 79Compliance with cl 6(1)(b) and (c) of SEPP 55 92Whether breach of cl 6 of SEPP 55 spells invalidity 95Whether the Recommendation decision is justiciable 101

GROUND 2: TAKING INTO ACCOUNT AN IRRELEVANT 106CONSIDERATION ORJURISDICTIONAL ERROR

GROUND 3: APPREHENSION OF BIAS 141

ORDERS 181

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INTRODUCTION

1 The applicant challenges the validity of the State Environmental Planning

Policy (Major Development) Amendment (Huntlee New Town Site) 2010

(Huntlee MD SEPP Amendment) made by the Governor and gazetted on

31 December 2010. The Huntlee MD SEPP Amendment, inter alia,

rezoned certain land (the Site) through the mechanism of listing the

proposed Huntlee New Town Site as a State Significant Site in Schedule 3

of the State Environmental Planning Policy (Major Development) 2005

(MD SEPP). The applicant contends that the Huntlee MD SEPP

Amendment is invalid because the recommendation to the Governor

(Recommendation) by the first respondent, the Minister for Planning

(Minister), to make the SEPP was invalid.

2 The Site has an area of about 1,702 hectares and is located in the Lower

Hunter region south of Branxton. The proponent of the rezoning is the

second respondent, Huntlee Pty Limited (Huntlee), which proposes to

carry out a 15 year project of large-scale residential development on the

Site comprising about 7,200 dwellings.

3 The applicant attacks the validity of the Minister's Recommendation on the

following grounds:

(1) failure to comply with cl 6 of State Environmental

Planning Policy No 55 - Remediation of Land

(SEPP 55);

(2) taking into account an irrelevant consideration, namely,

a planning agreement, the terms of which did not

provide for the enforcement of the agreement by a

suitable means, as required by s 93F(3)(g) of the

Environmental Planning and Assessment Act 1979

(EPA Act). Alternatively or further, it was a jurisdictional

error for the Minister to consider that the planning

agreement was made in accordance with the EPA Act

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and this error infected the Recommendation decision;

and

(3) reasonable apprehension of bias, in the form of

apprehension that the Minister had predetermined

whether to make the Recommendation.

4 The respondents generally support each other's submissions.

5 I uphold Grounds 1 and 2, reject Ground 3 and propose to grant relief,.

BACKGROUND FACTS

The first State Significant Site request

6 On 17 October 2006 the NSW Government released a document titled

"Lower Hunter Regional Strategy" (LHRS) which had been prepared by

the Department of Planning (Department). The LHRS states that it

"represents an agreed NSW government position on the future of the

Lower Hunter. It is the pre-eminent planning document for the Lower

Hunter Region and has been prepared to complement and inform other

relevant State planning instruments".

7 The LHRS classified the Site, described as "Branxton-Huntlee", as a

"major urban release" site of up to 7,200 dwellings.

8 On 22 December 2006 a deed was entered into between the then

proponent of the Site, Huntlee Holdings Pty Ltd (Huntlee Holdings), the

Minister and the Minister for the Environment in relation to, amongst other

areas, the Site (Deed). The Deed operated in conjunction with a

memorandum of understanding between the Minister and the Minister for

the Environment in relation to, amongst other areas, the Site, which had

been entered into on 16 October 2006 (Memorandum of

Understanding).

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9 Broadly speaking, the Memorandum of Understanding and the Deed

contemplated that certain land offsets and other contributions would be

provided by Huntlee Holdings in exchange for the rezoning of the Site to

enable the type of development contemplated in the LHRS (namely,

residential development to achieve up to 7,200 residential dwellings, and

associated development).

10 On 9 January 2009 the Governor purported to make, in accordance with a

recommendation by the Minister, State Environmental Planning Policy

(Major Projects) 2005 Amendment No 35 (Amendment No 35). The

purported effect of Amendment No 35 was to amend Schedule 3 of the

MD SEPP (then known as the State Environmental Planning Policy (Major

Projects) 2005) to list the Site as a State Significant Site and rezone the

Site to enable the development contemplated in the LHRS. On

9 February 2009 the Minister purported to grant a concept plan approval

under s 750 in respect of the Site.

The 2009 Proceedings

11 The applicant brought proceedings in this Court in which it challenged the

validity of Amendment No 35 and the concept plan approval

(2009 Proceedings). Those proceedings were discontinued after

declarations and orders were made by consent on 19 October 2009

declaring Amendment No 35 and the concept plan approval to be void and

of no effect and quashing them.

12 The 2009 consent orders noted that the declarations and orders were

made on the basis that the parties had agreed, having regard to the

decision of this Court in Gwanda/an Summer/and Point Action Group /nc v

Minister for Planning [2009] NSWLEC 140,75 NSWLR 269, that the

recommendation of the Minister in respect of Amendment No 35 and the

Minister's purported decision to grant concept plan approval involved

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administrative law errors, namely, reasonable apprehension of bias and

the taking into account of an irrelevant consideration, by reason of the

Minister's entering into the Deed and the Memorandum of Understanding.

The second State Significant Site request

13 In November 2009 a briefing note was prepared, signed by the Deputy

Director General of the Department, the Director General and the Minister,

which stated:

The [LHRS] was not directly reviewed by the Land andEnvironment Court in [Gwandalan].

The Department considers that the [LHRS] remains a soundstrategy and its validity is not dependent on the existence of theMemorandum of Understanding or Deeds of Agreements.

Moving forward, should the developments proceed as envisagedunder the [LHRS], any land offsets would be facilitated through thepreparation of VPAs in.accordance with section 93F of the[EPA Act].

14 On 23 November 2009 JBA Urban Planning Consultants Pty Ltd (JBA), on

behalf of Huntlee Holdings, wrote to the Director General requesting that

the Huntlee New Town Site be considered as a State Significant Site.

15 By letter to JBA dated 22 December 2009, the Director General responded

that in light of the consent orders made in the 2009 Proceedings, the

Department was not willing to consider Huntlee Holding's request unless

the Deed and Memorandum of Understanding were "extinguished". He

then stated: "Notwithstanding the above, the NSW Government remains

committed to the [LHRS] and the Lower Hunter Regional Conservation

Plan [(LHRCP)] and recently re-endorsed both."

16 On 18 February 2010 the NSW Government published a media release

headed "Lower Hunter Regional Strategy". Amongst other things, the

media release stated:

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(a) that a new "development proposal" for the Site was expected

to be re-lodged in coming months;

(b) that the Minister had been looking at the existing regional

strategy following legal action in relation to the Site;

(c) that the legal action (being the proceedings in Gwandalan)

"affected a small number of development sites where

memorandums of understanding (MOUs) and deeds were in

place";

(d) that "the existing regional strategy, independently of those

MOUs and deeds, continues to provide a clear basis that all

sites in the strategy to be considered on their merits and

assessed according to law"; and

(e) that "conservation land offsets will now be facilitated through

the preparation of Voluntary Planning Agreements within the

framework of the Environmental Planning and Assessment

Act 1979."

17 On 26 February 2010 the Deputy Director General wrote to interested

councils and others regarding the effect of the decision in Gwandalan in

the following terms:

Although the Court's judgment only affected a small number ofdevelopment sites, the NSW Government felt it was appropriate toconfirm that the [LHRS] still provided a secure foundation forplanning and development proposals. Accordingly, the [LHRS]has been re-endorsed by Cabinet.

18 A Department briefing note of the same date noted that the LHRS had

been re-endorsed by Cabinet and stated:

The Department considered that the Strategy remains sound andrecommended that Cabinet re-endorse the Strategy to provide areliable basis upon which future applications could be based.

19 On 6 July 201 o the parties to the Deed and Memorandum of

Understanding executed a deed of partial termination, the effect of which

was to terminate the Deed and Memorandum of Understanding insofar as

those agreements apply to the Site.

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20 On 8 July 2010 Huntlee requested the Minister to give consideration to the

inclusion of the Huntlee New Town Site as a State Significant Site in the

MD SEPP. By that time the provisions of the Deed of Agreement and

Memorandum of Understanding relating to the site had been expressly

extinguished. The Minister was advised that he was under no obligation of

any nature that may have arisen from the past agreements insofar as they

applied to the Site.

The third State Significant Site request

21 In May 2010 (that is, before the termination of the Deed and Memorandum

of Understanding) the second respondent, Huntlee, was established for

the purposes of implementing the Huntlee development.

22 On 8 July 2010 JBA on behalf of Huntlee wrote to the Director-General of

Planning (Director-General) and requested that consideration be given by

the Minister to rezoning the Site for a mix of uses by way of its inclusion as

a State Significant Site under Schedule 3 of the MD SEPP.

23 Between 8 and 16 July 2010 a Department briefing note was provided to

the Minister recommending that the Minister agree to investigate the listing

of the Site as a State Significant Site.

24 On 16 July 2010 the Minister agreed to consider the Site as a potential

State Significant Site. The Department advised JBA of the Minister's

decision by letter dated 26 July 2010, and asked Huntlee to prepare a

State Significant Site Study (555 Study) for the rezoning of the Site in

accordance with the requirements of the Director General.

25 The SSS Study was prepared by JBA on behalf of Huntlee and submitted

to the Department on 24 September 2010. The SSS Study addresses

contamination issues at section 7.6.2 and Appendices Land M.

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26 The SSS Study was placed on public exhibition from 29 September 2010

to 17 November 2010, during which '77 submissions were received by the

Department. On 26 November 2010 JDA on behalf of Huntlee provided a

Submissions Response to the Department. Mine rehabilitation and

contaminated land were identified as a "key issue" in the SSS

Submissions Response, and was addressed at section 2.6.

The 2010 Agreement

27 On 5 August 2010, Huntlee offered to enter into a planning agreement with

the Minister and the Minister for the Environment, which it provided to the

Department in draft form (Draft 2010 Agreement). The Draft 2010

Agreement was proposed in connection with Huntlee's request for the

listing of the Site as a State Significant Site and intended applications for

project approval under Part 3A of the EPA Act in respect of the Site. The

Draft 2010 Agreement was put on public exhibition together with the

SSS Study from 14 October 2010 to 17 November 2010.

28 In November 2010 the Minister was provided with a Department briefing

note headed "Huntlee - Potential State Significant Site - Status Update".

The briefing note included the following statements:

A voluntary planning agreement (VPA) relating to environmentaloffsets and mandatory contributions is also currently on exhibition

The VPA proposes to transfer up to approximately 5,612 ha ofenvironmentally significant land for environmental conservationwhich is proposed to be dedicated under the National Parks andWildlife Act 1974. The VPA also proposes a contribution of$100,000 towards the conservation of Persoonia pauciflora andcontribution of $1,000,000 towards the management of theConservation Offset Lands.

29 On or about 2 December 2010 the Minister was provided with a further

Department briefing note headed "Huntlee - Voluntary Planning

Agreement", which recommended that the Minister execute the Draft 2010

Agreement and authorise the Department to notify local councils as

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required by s 93G (4) it stated that it had been publicly exhibited in

accordance with s 93G(1) of the EPA Act. The briefing note stated:

The Planning Agreement provides that a Developer will makevarious contributions towards environmental conservation offsets,comprising the following:• transfer of 5,612 hectares of land for environmental

conservation ...including 607 hectares of land within theHuntlee site, 17 hectares for "Personia Park" and 4988hectares of land throughout Lower Hunter Region.

• demolition and/or removal of any dwellings, houses, sheds ordumped motor vehicles on the Conservation Offset Lands;

• a contribution of $100,000 towards the conservation ofPersoonia pauciflora ... ; and

• a contribution of $1,000,000 towards the management of theConservation Offset Lands."

30 On 3 December 2010, the Minister, the Minister for the Environment,

Huntlee and Misthold Pty Ltd (Misthold) (being the owner of some lots

within the Site) executed an agreement substantially in the form of the

Draft 2010 Agreement (2010 Agreement).

31 The 2010 Agreement uses the expression "Land Owner" to refer to

Huntlee and Misthold collectively. The expression "Land" is defined, by

reference to Table 2 of Schedule 2, The expression "Conservation Offset

Lands" is defined by reference to Table 2 of Schedule 2, and also

comprises a series of numbered lots. The Land and the Conversation

Offset Land include the area covered by the Site as well as additional

lands.

32 Important provisions of the 2010 Agreement include the following:

(a) The recitals include that the Land Owner is or will be the

owner of the Land, intends to develop the Land, seeks to

change an environmental planning instrument (being the MD

SEPP) and intends to lodge Part 3A project approval

applications for the development of the Land in accordance

with the MD SEPP as amended on a stage-by-stage basis.

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(b) Clause 3 recites that the 2010 Agreement "constitutes a

planning agreement within the meaning of section 93F of the

[EPA Act]".

(c) Clause 5 imposes an obligation on the Land Owner to

provide or procure the provision of "Development

Contributions" (defined by reference to Schedule 4) in

accordance with the Development Contributions Schedule

(defined by reference to Schedule 3), the Development

Contributions Timetable (defined by reference to Table 1 of

Schedule 5) and the terms of the 2010 Agreement.

(d) Having regard to the relevant Schedules, the Land Owner's

obligations to provide the Development Contributions may be

summarised as follows:

(i) The Land Owner undertakes to pay the Contribution

Amount to the Minister in accordance with the

Development Contributions Timetable (Schedule 4,

cl 1.1).

(ii) The "Contribution Amount" is described in Table 1 of

Schedule 3 as a payment of $1,100,000 by the Land

Owner. The payment is broken down as follows:

1. The first $200,000 (being $100,000 for conservation ofpersonia pauciflora in the North Rothbury area and$100,000 towards the management of theConservation Offset Lands) is to be paid to the Ministerby 31 January 2012 unless a "Relevant LegalChallenge" is on foot at that time, such that the validityof the MD SEPP Amendment is in question. In thosecircumstances, the money is payable upon theRelevant Legal Challenge being discontinued or finalorders being made (Schedule 5 Table 1).

2. The remaining $900,000 is to be paid in six equalinstalments of $150,000 (as adjusted by movements inthe CPI as provided for in Schedule 3) paid to theMinister annually, the first instalment to be paid on 31January 2014 (Schedule 5, Table 5).

(iii) The Conservation Offset Lands are required to be

transferred to the Minister within 30 days after the later

of the date of the registration of the Plan of Subdivision

in respect of the Site or the date which is four months

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after the Gazettal Date, subject to the obligation being

suspended by reason of a "Relevant Legal Challenge"

(cl 2.3 of Schedule 4; Column 2 of Table 2 of

Schedule 5).

1. The "Plan of Subdivision" is defined to mean astatutory plan of subdivision to, amongst other things,create separate lots for part of the Conservation OffsetLands in accordancewith Annexure D. Clause 2.2 ofSchedule 3 imposes an Obligationon the Land Ownerto obtain the Plan of Subdivision.

2. The "Gazettal Date" is defined to mean the date whenthe MD SEPPAmendment commences.

(e) Clause 7.1 provides that the 2010 Agreement "may be

enforced by any Party in any Court". Clause 7.2(a) notes

that nothing in the 2010 Agreement is to be taken to prevent

enforcement by bringing proceedings in this Court.

Schedule 1 is headed "Section 93F Requirements". It

asserts that the requirements of s 93F(3)(g) are satisfied by

cl 7.

(f) By cl 9.2 Huntlee represents and warrants to the Minister and

the Minister for the Environment that it is the legal owner of

the Land (subject to specific exceptions for particular lots),

and Huntlee and Misthold each give the same warranty in

respect of portions of the Conservation Offset Lands (again,

subject to specific exceptions).

(g) By cl 9.4 the Land Owner acknowledges and agrees that the

Minister will, upon the 2010 Agreement coming into

operation, acquire an equitable interest in the Land and the

Conservation Offset Lands and that it will not object to the

Minister lodging a caveat in respect of the Land and

Conservation Offset Lands. By cl 9.6 the Land Owner

represents and warrants to the Minister that the Financier

(being any financier of the Land Owner) consents to the Land

Owner entering into performing under the 2010 Agreement

and the registration of the 2010 Agreement, and gives priority

to rights of the Minister under the 2010 Agreement.

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------------------------------------------------------------------

(h) Clause 13 adjusts the rights of the parties in the event of a

Relevant Legal Challenge. It suspends the Land Owner's

obligations to pay the Development Contributions and

provides, in certain circumstances, for the re-transfer of the

Conservation Offset Lands to the Land Owner and the

repayment of the Contribution Amount in the event of a

successful challenge to the validity of the MD SEPP

Amendment.

(i) Clause 14 contains releases and indemnities. Amongst other

things, the Land Owner indemnifies the Minister against all

liabilities or loss arising from, and any Costs incurred in

connection with the Minister enforcing the Land Owner's

obligation to provide the Development Contributions in

accordance with the 2010 Agreement.

U) Clause 15 provides for the payment of interest by the Land

Owner if the Land Owner fails to pay any of the Contribution

Amount (or any other amount payable under the

2010 Agreement) when it falls due.

33 The 2010 Agreement has been registered by the Registrar General with

the agreement of the parties, as contemplated by s 93H of the EPA Act.

The Recommendation and SEPP Amendment

34 On or about 2 December 2010 the Minister was provided with a further

Department briefing note headed "Proposed Amendment to Schedule 3 of

[MD SEPP]".

35 In describing the proposed MD SEPP Amendment, the briefing note stated

"there is remediation on certain areas of the Site that needs to occur

before residential development can be placed on the site". It also noted

that rehabilitation of "former mining areas" was required prior to use of the

land for urban purposes.

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36 The briefing note recommended that the Minister, amongst other things,

recommend to the Governor that she "for the purpose of environmental

planning by the State, make the [Huntlee MD SEPP Amendment] pursuant

to s 47(1) of the EPA Act." The briefing note also stated under the heading

"Contamination":

Several submissions raised concerns regarding the former miningarea contamination the need for rehabilitation prior todevelopment.

Departmental Response

The Department is satisfied that appropriate remediation can becarried out prior to any development of the land for urbanpurposes and further consideration will occur as part of futuredevelopment assessment.

37 The "Background" section of the briefing note recited the history of the first

State Significant Site listing request, and noted that: "[t]he original Huntlee

rezoning and Concept Plan approval were declared void and of no effect ...

due to matters of procedure surrounding the Deed of Agreement between

the developer and the Government".

38 The briefing note attached a copy of the MD SEPP Amendment and a

Department document headed "Consideration of Issues Raised in

Submissions". It included a section headed "Issue - Contamination", which

stated:

Some areas of the site have been found to contain contaminatedland as a result of former mining and landfill activities...

Remediation Notices of PreventativeAction are currently in placefor the former Ayrfield Colliery property. These notices require anumber of on-going management and monitoring measures to beput in place.

The proponent has outlined that further detailed investigations ofthis and other affected areas will be undertaken prior to anyapplications for subdivision and works in these locations.

Under SEPP 55 - Remediation of Land, contamination andremediation of contaminated land must be considered in regardsto a rezoning proposal. The planning authority, in this case theMinister, has considered whether the land is contaminated and is

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satisfied that land will be suitable for mixed use development(including residential and recreational) purposes after remediationhas been carried out.

39 On or after 2 December 2010 the Minister made the Recommendation.

40 In this case, particularly in relation to Ground 1, much turns on what

material was before the Minister when he made the Recommendation.

The documents that were before the Minister when he made the

Recommendation were the briefing note, a copy of the MD SEPP

Amendment, and a Department document headed "Consideration of

Issues Raised in Submissions" referred to above. Those documents did

not include the SSS Study or the attachments thereto. There is nothing to

indicate that the SSS Study was put before the Minister at any earlier point

in time.

41 On 21 December 2010 the Governor accepted the Recommendation and

made the MD SEPP Amendment.

42 Prior to the making of the MD SEPP Amendment the Site was zoned 1(a)

Rural "A", 1(c) Rural-Residential/Rural (Small Holdings) and 1(v) Rural

(Vineyards) under the Cessnock Local Environmental Plan 1989 and

Rural 1(a) and Rural (Small Holdings) 1(d) under the Singleton Local

Environmental Plan 1996. The zonings following the making of the

MD SEPP Amendment are Mixed Use, National Parks and Nature

Reserves, Environmental Management, General Residential, Low Density

Residential and Large Lot Residential.

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GROUND 1: NON-COMPLIANCE WITH SEPP 55

43 Ground 1 is that the Minister failed to comply with the conditions in

cl 6(1 )(b) and (c) and cl 6(2) of SEPP 55. Clause 6 specifies conditions

that must be satisfied before a planning authority, in preparing an

environmental planning instrument, includes land in a particular zone.

44 Clause 6 relevantly provides:

6 Contamination and remediation to be considered in zoningor rezoning proposal

(1) In preparing an environmental planning instrument, aplanning authority is not to include in a particular zone (withinthe meaning of the instrument) any land specified insubclause (4) if the inclusion of the land in that zone wouldpermit a change of use of the land, unless:(a) the planning authority has considered whether the land

is contaminated, and(b) if the land is contaminated, the planning authority is

satisfied that the land is suitable in its contaminatedstate (or will be suitable, after remediation) for all thepurposes for which land in the zone concerned ispermitted to be used, and

(c) if the land requires remediation to be made suitable forany purpose for which land in that zone is permitted tobe used, the planning authority is satisfied that the landwill be so remediated before the land is used for thatpurpose.

Note. In order to satisfy itself as to paragraph (c), theplanning authority may need to include certain provisions inthe environmental planning instrument.

(2) Before including land of a class identified in subclause (4) ina particular zone, the planning authority is to obtain and haveregard to a report specifying the findings of a preliminaryinvestigation of the land carried out in accordance with thecontaminated land planning guidelines.

(5) In this clause, planning authority has the same meaning as ithas in section 145A of the Act.

45 The respondents contend that:

(a) clause 6 is inapplicable because the Minister was not a

relevant planning authority under cl 6 of SEPP 55;

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(b) clause 6 is inapplicable because the Minister did not prepare

the MD SEPP Amendment;

(c) the MD SEPP and cl 6 of SEPP 55 are inconsistent such that

the latter does not apply; and

(d) in the event that cl 6 is applicable, in fact the Minister

complied with cl 6(1 )(b), (c) and (2);

(e) even if the Minister did not comply, a breach of clause 6 of

SEPP 55 would not spell invalidity; and

(f) in any event, the Minister's Recommendation decision is not

justiciable.

46 SEPP 55 was gazetted in 1998. Its object is specified in cl 2:

(1) The object of this Policy is to provide for a Statewide planningapproach to the remediation of contaminated land.

(2) In particular, this Policy aims to promote the remediation ofcontaminated land for the purpose of reducing the risk ofharm to human health or any other aspect of theenvironment:(a) by specifying when consent is required, and when it is

not required, for a remediation work, and(b) by specifying certain considerations that are relevant

in rezoning land and in determining developmentapplications in general and development applicationsfor consent to carry out a remediation work inparticular, and

(c) by requiring that a remediation work meet certainstandards and notification requirements.

47 The following matters are uncontentious:

(a) ,Clause 6 (1) applies to the Site because the Site is specified

in subclause (4). The MD SEPP permits a change of use of

the Site by rezoning land within the Site to residential and

other uses.

(b) The expression "contaminated land planning guidelines" in

cl 6(2) is defined in cl 4 to mean "guidelines under s 145C of

the [EPA] Act". The relevant guidelines are the State

government guidelines titled "Managing Land Contamination

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Planning Guidelines SEPP 55 - Remediation of Land 1998"

(SEPP55 Guidelines): Australians for Sustainable

Development Ine v Minister for Planning [2011] NSWLEC 33

at [76].

(c) The planning authority referred in cl 6(2) is also the planning

authority referred to in cl 6(1).

(d) In this case, the "preliminary investigation" referred to in

cl 6(2) is the SSS Study of 24 September 2010: see [24] -

[26] above. The SSS Study was considered by the

Department but was not seen by the Minister.

48 "Planning authority" in cl 6 has the same meaning it has in s 145A: cl 6(5).

Sections 145A and 1458 relevantly provide:

145A DefinitionsIn this Part:contaminated land means land in, on or under which anysubstance is present at a concentration above the concentration atwhich the substance is normally present in, on or under(respectively) land in the same locality, being a presence thatpresents a risk of harm to human health or any other aspect of theenvironment.contaminated land planning guidelines means guidelinesnotified in accordance with section 145C.planning authority, in relation to a function specified in section1458, means:

(b) in the case of any other function-the public authority or otherperson responsible for exercising the function.

1458 Exemption from liability-contaminated land(1) A planning authority does not incur any liability in respect ofanything done or omitted to be done in good faith by the authorityin duly exercising any planning function of the authority to whichthis section applies in so far as it relates to contaminated land(including the likelihood of land being contaminated land) or to thenature or extent of contamination of land.(2) This section applies to the following planning functions:

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(a) the preparation or making of an environmental planninginstrument, including a planning proposal for the proposedenvironmental planning instrument,(b) the preparation or making of a development controlplan,(c) the processing and determination of a developmentapplication and any application under Part 3A,(d) the modification of a development consent,(d1) the processing and determination of an application fora complying development certificate,(e) the furnishing of advice in a certificate undersection 149,(t) anything incidental or ancillary to the carrying out of anyfunction listed in paragraphs (a)-(e).

(3) Without limiting any other circumstance in which a planningauthority may have acted in good faith, a planning authority is(unless the contrary is proved) taken to have acted in good faith ifthe thing was done or omitted to be done substantially inaccordance with the contaminated land planning guidelines inforce at the time the thing was done or omitted to be done.(4) This section applies to and in respect of:

(a) a councillor, and(b) an employee of a planning authority, and(c) a public servant, and(d) a person acting under the direction of a planningauthority,

in the same way as it applies to a planning authority.

Applicability of cl 6: Whether the Minister was a relevant planning authority

49 The disputed premise of the Ground 1 challenge is that the Minister was a .

relevant "planning authority" referred to in cl 6 of SEPP 55. The "planning

authority" referred to in cl 6(1) is the same planning authority referred to in

cl 6(2), that is, a planning authority whose function concerns "preparing"

the relevant environmental planning instrument.

50 The applicant submits that the Minister and the Director-General both

satisfy the definition of planning authority in cl 6(5) or alternatively that the

Minister exclusively satisfies that definition. The respondents submit that

the Director-General prepares SEPPs, the Governor makes them, the

Minister does neither, and therefore cl 6 is inapplicable to the Minister.

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51 The Department's briefing note before the Minister when he made his

recommendation to the Governor appended a Department document

which stated that the Minister was the planning authority under cl 6. The

Director-General and the Minister signed the briefing note. The applicant

would reasonably have launched and conducted the proceedings to

hearing with a sense of security that the accuracy of that statement would

not be contentious. However, the respondents submit that that statement

was incorrect. They submit, correctly, that it is a question of law for the

Court to determine.

52 Clause 6(5) of SEPP 55 provides that in cl 6 "planning authority" has the

same meaning as it has in s 145A of the EPA Act. Section 145A is within

Part 7A (ss 145A.;145C) titled "Liability in respect of contaminated land".

Section 145A(c) relevantly provides that a planning authority in relation to

a function specified in s 1458 means "the public authority or person

responsible for exercising the function" (emphasis added). The relevant

function is that specified in s 1458(2)(a), namely, "the preparation or

making of an environmental planning instrument, including a planning

proposal for the proposed environmental planning instrument". The

relevant "planning authority" referred to in cl 6 is therefore the authority

"responsible" under the EPA Act for exercising the function of preparing

SEPPs.

53 No provision of the EPA Act expressly identifies who is responsible for

"preparing" SEPPs. Part 3 is titled "Environmental planning instruments",

which comprise SEPPs and Local Environmental Plans (LEPs). The

function of "making" SEPPs is expressly conferred on the Governor:

ss 24(2)(a) and 37(1). The function of "recommending" the making of

SEPPs expressly belongs to the Minister: s 38. Sections 37 and 38

comprise the whole of Division 2 titled "SEPPs" of Part 3 of the EPA Act.

Sections 24(2), 37 and 38 provide as follows:

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24 Making of environmental planning instruments

(2) Environmental planning instruments may be made:

(a) by the Governor under Division 2 (called a Stateenvironmental planning policy or SEPP), or

(b) by the Minister (or delegate) under Division 4 (called a localenvironmental plan or LEP).

37 Governor may make environmental planning instruments(SEPPs)

(1) The Governor may make environmental planninginstruments for the purpose of environmental planning by theState. Any such instrument may be called a Stateenvironmental planning policy (or SEPP).

(2) Without limiting subsection (1), an environmental planninginstrument may be made by the Governorto make provisionwith respect to any matter that, in the opinion of the Minister,is of State or regional environmental planning significance.

38 Consultation requirements

Before recommending the making of an environmental planninginstrument by the Governor, the Minister is to take such steps, ifany, as the Minister considers appropriate or necessary:

(a) to publicise an explanation of the intended effect of theproposed instrument, and

(b) to seek and consider submissions from the public on thematter.

Note. See also section 34A

54 The note refers to s 34A which confers, in the case of a proposed SEPP, a

consultation function on the Director-General in relation to threatened

species etc, as follows:

34A Special consultation procedures concerning threatenedspecies

(1) In this section, the relevant authority means:(a) in the case of a proposed SEPP-the Director-General,

or(b) in the case of a proposed LEP-the relevant planning

authority.(2) Before an environmental planning instrument is made, the

relevant authority must consult with the Director-General ofthe Department of Environment, Climate Change and Waterif, in the opinion of the relevant authority, critical habitat orthreatened species, populations or ecological communities,

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or their habitats, will or may be adversely affected by theproposed instrument.

55 Section 38 does not say to whom the Minister's recommendation is made.

Given that the Governor makes SEPPs, I consider it to be implicit that the

recommendation is made to the Governor. Consistently with that

conclusion, the briefing note to the Minister proposed that the Minister

make that recommendation to the Governor. Of course, the Governor

must act on the advice of the Executive Council: s 14 Interpretation

Act 1987. The MD Amendment SEPP is expressed to be made by the

Governor with the advice of the Executive Council.

56 The identity of the entity statutorily responsible for the preparation of

SEPPs, which is critical to the application of cl 6 of SEPP 55, has to be

established by implication. Sections 37 and 38 were inserted in their

present form by the Environmental Planning and Assessment Amendment

Act 2008 (2008 Amending Act). Previously Division 2 (ss 37-39) of Part 3

spelt out expressly that the Director-General (then called the Director)

prepared SEPPs and submitted them to the Minister and that the Minister

recommended to the Governor the making of SEPPs, as follows:

DIVISION 2-State environmental planning policies.

37(1) The Director may, after consultation with such publicauthorities as he determines, prepare a draft Stateenvironmental planning policy with respect to suchmatters as are, in the opinion of the Director, ofsignificance for environmental planning for the State, andmay submit it to the Minister.

(2) The Minister may, after consultation with such Ministersas he determines, cause to be prepared by the Directorfor submission to the Minister a draft State environmentalplanning policy with respect to any matter specified by theMinister, being a matter which is, in the opinion of theMinister, of significance for environmental planning for theState.

38 Subject to this Act and the regulations, the format,structure and subject-matter of a State environmentalplanning policy or draft State environmental planningpolicy shall be as determined by the Minister.

39(1) The Minister may, on the submission to him by theDirector of a draft State environmental planning policy,

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recommend to the Governor the making of a Stateenvironmental planning policy

(a) in accordance with that draft State environmental planningpolicy submitted to the Minister; or

(b) in accordance with that draft State environmental planningpolicy with such alterations as the Minister thinks fit, or hemay decide not to make that recommendation.

(2) The Minister shall take such steps as he considersappropriate or necessary to publicise a draft Stateenvironmental planning policy and to seek and considersubmissions from the public before he makes such arecommendation.

(3) The Minister may not make such a recommendationexcept with respect to such matters as are, in his opinion,of significance for environmental planning for the State.

(4) The Governor may make a State environmental planningpolicy in accordance with a recommendation made underthis section.

(5) A State environmental planning policy shall apply to theState or such part of the State as is described in thepolicy.

57 Notwithstanding the removal of the provision in the old s 37 which

conferred the function of preparing a SEPP on the Director-General, the

respondents submit that the Director-General implicitly still has the

preparation function. The respondents contend that recommending the

making of a SEPP is not part of its preparation, for the following reasons:

(a) Having regard to the nature of the functions conferred on the

Minister under the EPA Act, particularly in s 7, it would be

incongruous for the Minister to be charged with the

administrative function of preparing a SEPP. Section 7

provides:

7 Responsibility of Minister

Without affecting the functions that the Minister has apart from thissection, the Minister is charged with the responsibility of promotingand co-ordinating environmental planning and assessment for thepurpose of carrying out the objects of this Act and, in dischargingthat responsibility, shall have and may exercise the followingfunctions:

(a) to carry out research into problems of environmentalplanning and assessment and disseminate informationincluding the issue of memoranda, reports, bulletins, maps orplans relating to environmental planning and assessment,

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(b) to advise councils upon all matters concerning the principlesof environmental planning and assessment and theimplementation thereof in environmental planninginstruments,

(c) to promote the co-ordination of the provision of public utilityand community services and facilities within the State,

(d) to promote planning of the distribution of population andeconomic activity within the State,

(e) to investigate the social aspects of economic activity andpopulation distribution in relation to the distribution of utilityservices and facilities, and

(f) to monitor progress and performance in environmentalplanning and assessment, and to initiate the taking ofremedial action where necessary.

(b) A ministerial function of preparing SEPPs is inconsistent with

s 34A(1 )(a), to which the note to s 38 draws attention: see

"[54] above.

(c) The function of preparing SEPPs is consistent with the

Director-General's general functions under s 15 of submitting

proposals "with respect to environmental planning". Section

15 provides:

15 Functions of the Director-General

In addition to the functions conferred or imposed on the Director-General by or under this or any other Act, the Director-Generalmay, for the purposes of this Act:

(a) submit to the Minister such proposals with respect toenvironmental planning and assessment as the Director-General considers necessary or appropriate, includingproposals for the development and use of land, whether ornot in conjunction with the provision of utility services andpublic transport facilities, and

(b) consider and furnish reports to and advise and makerecommendations to the Minister upon any matter orproposal relating to the development and use of land or toenvironmental planning and assessment which may bereferred to the Director-General by the Minister.

(d) An analogy is drawn with ss 54 and 55, which provides that

in the case of local environmental plans the relevant planning

authority is normally the local council and that it has an

express preparation function. I have difficulty with the

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analogy. I observe that the function the subject of ss 54 and

55 is to prepare not the local environmental plan but a

document that explains the intended effect of the proposed

instrument and its justification.

58 In my opinion, the Minister is responsible for preparing SEPPs and is

therefore a relevant planning authority referred to in cl 6 of SEPP 55 for

two distinct reasons.

59 First, in my view, the Minister's recommendation function is part of the

preparation of a SEPP: cl 6(5), ss 145A and 1458 set out at [44] and [48]

above. Assuming that the Director-General is responsible for the other

aspects of the preparation of SEPPs - which I do not accept: see [63]

below - there are two relevant planning authorities referred to in cl 6: the

Minister and the Director-General.

60 As analysed above at [52], ss 145A and 1458 show that the relevant

planning authority in cl 6 is the authority "responsible" under the EPA Act

for exercising the function of preparing SEPPs. Section 1458 provides

exemption from liability for "preparation" or "making" of environmental

instruments. This suggests that the statutory process of creation of a

SEPP, from go to whoa, is divided into preparation and making.

61 If the respondents' submission is correct that the Minister neither prepares

nor makes SEPPs and therefore cl 6 is inapplicable to the Minister's

recommendation function, then the Director-General and the Governor

have the benefit of the exemption from liability under s 1458(2)(a) but the

Minister does not - even though it is the Minister who recommends the

making of SEPPs to the Governor and is potentially liable in respect of it.

The Minister falls between the cracks even though the Minister's role may

be viewed as the most important (that is not to diminish the role of the

Executive Council on whose advice the Governor must act: Interpretation

Act s 14). It may reasonably be inferred that the legislature did not intend

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_.- ---------------

to leave the Minister out in the cold by excluding the Minister's

recommendation function. The recommendation function is not part of the

making of a SEPP, which is expressly vested in the Governor (ss 24(2)

and 37). That suggests that under this statutory scheme it is part of the

preparation function. That is, preparation covers all aspects of the plan

making process up to the "making" of the plan (including investigations,

drafting, considering and recommending).

62 The respondents ~eek to meet this point by submitting that the Minister's

recommendation function is incidental or ancillary to the preparation

function of the Director-General or the making function of the Governor

and therefore comes with the exemption from liability in s 145B(2)(f):

"anything incidental or ancillary to the carrying out of any function listed in

paragraphs (a) - (e)". I do not accept the submission. In my view the

central importance of the Minister's recommendation to the Governor to

make a SEPP is such that it cannot be regarded as merely incidental or

ancillary to (on the respondents' argument) the preparation or making

functions of others.

63 Secondly, in any case, even if the Minister's recommendation to the

Governor to make a SEPP is not part of the preparation of a SEPP, then

(contrary to the assumption made at [59] above) in my opinion the

Minister, not the Director-General, is responsible for the preparation of

SEPPs. Therefore the Minister is the relevant planning authority referred

to in cl 6. The following considerations support this conclusion:

(a) The old s 37 which conferred the function of preparing

SEPPs on the Director-General was repealed. The repeal

suggests that the legislature intended to confer this function,

or part of it, on someone else. The only other candidate is

the Minister.

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(b) The opening words of s 7 of the EPA Act, dealing with the

responsibility of the Minister, contemplate that the Minister

may have functions apart from those specified in s 7: see

[57](a) above.

(c) The making of a SEPP is not an administrative act but

delegated legislation - as the respondents emphasise in the

context of Ground 3 when submitting that its higher character

precludes the principle of apprehended bias. It is not

inappropriate that the Minister would be "responsible" for the

preparation of delegated legislation, albeit the actual

preparation would be done for the Minister by the Minister's

Department under the Director-General.

(d) It is also not inappropriate that the person with responsibility

for recommending that the Governor make a SEPP is the

person "responsible" for its preparation.

(e) It is a subtle point but s 34A tends to suggest that the

relevant planning authority referred to in cl 6 is not the

Director-General and therefore is the Minister: see [54]

above. Section 34Ais referable to the period of preparation

of an environmental planning instrument - as is cl 6 of SEPP

55. If Parliament intended the Director-General to be the

exclusive planning authority for preparation of SEPPs, there

was no need to make a distinction between SEPPs and LEPs .

in s 34A(1)(a) and (b). The fact that the Director General is

expressly identified as the "relevant authority" tends to

suggests that Director-General is not the relevant "planning

authority" in cl 6 of SEPP 55.

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Applicability of cl 6: Preparation of the Huntlee MD SEPP Amendment

64 The respondents submit that cl 6 does not apply because the Minister did

not prepare the Huntlee MD SEPP Amendment. Rather, the Director-

General prepared it using the services of the Department. The

respondents argue that this is apparent from the recommendation in the

briefing note that the Minister approve the form and subject matter of the

proposed Huntlee MD SEPP Amendment pursuant to s 33A(9) of the

EPA Act and from the Director-General's signature on the briefing note.

Section 33A(9) provides:

33A Standardisation of environmental planning instruments

(9) Subject to this Act and the regulations, the form and subject-matter of an environmental planning instrument is (if there isno applicable standard instrument) to be as determined bythe Minister.

65 It is apparent that officers of the Department physically prepared the

proposed Huntlee MD SEPP Amendment and made the recommendation

in the Briefing note. No inference can be drawn from the briefing note that

they did so on behalf of the Director-General rather than the Minister: the

briefing note in evidence is signed by a Department officer, the Director-

General and the Minister.

66 In any case, that is not to the point. I have concluded on two bases that

the Minister was a or the authority "responsible" for preparing SEPPs and

therefore was a or the relevant planning authority under cl 6: see [58]

above. On either basis, the Minister was therefore "responsible" for the

preparation, and the "preparing" referred to in cl 6(1) is attributable to the

Minister.

67 Accordingly, in my opinion, cl6 applied to the Minister.

- 32 -

Inconsistency

68 The respondents submit that cl 6 of SEPP 55, gazetted in 1998, does not

apply at all because the later MD SEPP, gazetted in 2005, prevails to the

extent of any inconsistency and cl 8 of the latter is exhaustive.

69 The is contrary to the Department briefing note to the Minister which

stated: "Under SEPP 55 - Remediation of Land, contamination and

remediation of contaminated land must be considered in regards to a

rezoning proposal". These proceedings would reasonably have been

commenced on the assumption that this was not contentious.

Nevertheless, as the respondents do contest it, it is a question of law for

the Court to determine.

70 Section 36 of the EPA Act relevantly provides:

36 Inconsistency between instruments

(1) In the event of an inconsistency between environmentalplanning instruments and unless otherwise provided:

(c) the general presumptions of the law as to when an Actprevails over another Act apply to when one kind ofenvironmental planning instrument prevails overanother environmental planning instrument of the samekind.

(4) Nothing in this section prevents an environmental planninginstrument from being expressly amended by a laterenvironmental planning instrument, of the same or a differentkind, to provide for the way in which an inconsistencybetween them is to be resolved.

71 Section 36 does no more than codify the common law. Its use of the

words "In the event of any inconsistency" and "unless otherwise provided"

must be given effect.

72 Both SEPPs express themselves to be superior to any other state

environmental planning policy. In that regard, cl 19(1) of SEPP 55

provides:

- 33-

19 Relationship to other environmental planning instruments

(1) If this Policy is inconsistent with another State environmentalplanning policy, a regional environmental plan or a localenvironmental plan (whether made before or after thisPolicy), this Policy prevails, except as provided by this clauseand section 36 (4) of the Act.

73 Similarly, cl 5 of the MD SEPP provides:

5 Relationship to other environmental planning instruments

Subject to section 74 (1) of the Act, in the event of aninconsistency between this Policy and another environmentalplanning instrument whether made before or after thecommencement of this Policy, this Policy prevails to the extent ofthe inconsistency.

74 I reviewed the principles of statutory interpretation relating to reconciliation

of potentially competing provisions within different statutes which are

expressed to apply notwithstanding or despite any other Act in Parks and

Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC

231, 179 LGERA 346. I said at [81] - [85] (omitting most citations):

81 Conflicting provisions of a statute should be reconciled, sofar as possible, on the prima facie basis that its provisionsare intended to give effect to harmonious goals. Whereconflict appears to arise from the language, the conflict mustbe alleviated, so far as possible, by adjusting the meaning ofcompeting provisions to achieve the result which will bestgive effect to the purpose and language of those provisionswhile maintaining the unity of all the statutory provisions.Reconciling conflicting provisions will often require the Courtto determine the hierarchy of provisions and which must giveway to the other.

82 In the absence of express words, partial repeal of an earlierstatute by a later statute will only be implied on very stronggrounds "for there is a general presumption that thelegislature intended that both provisions should operate andthat, to the extent that they would otherwise overlap, oneshould be read as subject to the other": Saraswati v TheQueen (1991) 172 CLR 1 at 17. Reading one "as subject tothe other" means, I understand, that collision may be avoidedby holding that the later statute, which is ex facie in conflictwith the earlier statute, does not repeal but merely providesfor an exception from the general rule contained in the earlierstatute.

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83 The question of conflict has been expressed in various ways:whether the two items of legislation can stand or livetogether, whether there is contrariety or direct conflict,whether they are irreconcilable.

85 Where there is conflict between Acts of the same legislature,courts endeavour to reconcile their texts. If they cannot doso, they resort to established canons of constructionincluding priority to the law made later in time and priority toa more specific law over a more general law.

75 I applied the principles discussed in Parks and Playgrounds in Oshlack v

Rous Water [2011] NSWLEC 73 at [33] - [51]. That case raised a

complex construction issue because it concerned two Acts each of which

was expressed to apply notwithstanding any other Act. A similar issue

arises in the present case in the event of an inconsistency between the

two SEPPs.

76 Clause 8 of MD SEPP requires investigation into proposals for the listing of

State significant 'sites, as follows:

8 Proposals for State significant site listing

(1A) The Minister may publish a notice in the Gazette advising ofa proposal that Schedule 3 be amended to add a site that theMinister considers to be a State significant site.

(1) For the purposes of considering a proposed amendment toSchedule 3, the Minister may initiate an investigation into theproposal by requiring the Director-General to undertake astudy or to make arrangements for a study to be undertakenfor the purpose of determining:(a) whether any development on the site should be

declared to be a project to which Part 3A of the Actapplies, and

(b) the appropriate development controls for the site.(2) Any such study is to assess:

(a) the State or regional planning significance of the site,and

(b) the suitability of the site for any proposed land usetaking into consideration environmental, social andeconomic factors, the principles of ecologicallysustainable development and any State or regionalplanning strategy, and

(c) the implications of any proposed land use for local andregional land use, infrastructure, service delivery andnatural resource planning, and

Cd) any other matters required by the Director-General.

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(3) The Director-General is to make arrangements for any suchstudy to be publicly exhibited with an invitation to the publicto make written submissions.

(4) The Minister may direct that an inquiry be held as part of theinvestigation into a potential State significant site.

(5) The Director-General is to provide the Minister with a copy ofany such study and any recommendations relating to it.

(6) This clause does not preclude an amendment of Schedule 3without compliance with this clause.

77 The single object of SEPP 55 is "to provide for a Statewide planning

approach to the remediation of contaminated land": cl 2(1). By contrast,

the MD SEPP is facultative. It is designed to "facilitate the development,

redevelopment or protection of important urban coastal and regional sites

of economic or social significance to the State so as to facilitate the orderly

use, development or conservation of the State significant sites for the

benefit of the State": cl 2(c).

78 In my opinion, the provisions of the two SEPPs are intended to give effect

to harmonious goals. The specific and mandatory provisions of cl 6 of

SEPP 55 require consideration of contamination and remediation in zoning

and rezoning proposals. The general provisions of the MD SEPP empower

the Minister, in the Minister's discretion, to require a study to assist the

Minister when determining a proposal for a State Significant Site listing. In

my view, they operate in different spheres. Even if they do not, both can

be obeyed. There is no relevant inconsistency between the two SEPPs

such that they cannot stand together.

Compliance with cl 6(2) of SEPP 55

79 The next question is whether the Minister in fact complied with cl 6(2),

which it is convenient to repeat:

Before including land of a class identified in subclause (4) in aparticular zone, the planning authority is to obtain and have regardto a report specifying the findings of a preliminary investigation ofthe land carried out in accordance with the contaminated landplanning guidelines.

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80 The preliminary investigation report in this case was the SSS Study of

November 2010 submitted on behalf of Huntlee: see [24]-[25] above.

Although it was expressed to be submitted to the Minister, in fact the

Department saw it but the Minister did not. All that the Minister saw when

making his Recommendation decision was a Department briefing note and

its attachments, namely, the proposed MD SEPP Amendment and a

Department document.

81 Clause 6(2) required regard to be had to a report specifying "the findings"

of the SSS Study.

82 The applicant submits that the findings of the SSS Study are in the 13 dot

points in the executive summary, covering almost two pages, of

Appendix L titled "Ayrfield No 3 Colliery Mine Workings Rehabilitation

Outline", and in the first five dot points covering one third of a page in the

Conclusions and Recommendations (section 8) of Appendix M titled

"Remediation and Rehabilitation Plan"(in the tender bundle in evidence

they are incorrectly identified as appendices K and L). As the Minister did

not see any part of the SSS Study, the applicant submits that he did not

have regard to a report specifying the findings of the preliminary

investigation as required by cl 6(2).

83 The executive summary in Appendix L states:

A summary of the key issues identified at the site are:

• The landfill operation in the former coal handling andpreparation plant (CHPP) fines settling ponds area wasfound to contain large amounts of putrescible materialsplaced on top of the capped cells, with the open cellsunlined with impervious liners as required by the consentfor landfilling and rehabilitations works at the site;

• Coal fines material sampled is above guideline levels forTPH's and PAH's;

• A flat area, below and to the south of the fines settlingponds, contains garnet and black sand blasting grits. These

- 37 -

materials are spread over an area of approximately 400m2 ..Analysis of the sands collected showed that they are aboveguideline levels for lead, arsenic, copper and zinc;

• Salt scalding was observed at the surface along drainagelines around the northern edge of the railway siding, directlybelow the capped coal fines emplacements and land fillscells;

• Asbestos sheeting and friable insulation materials wereidentified at a number of locations on the property. All wereobserved to be in a poor condition with the potential forfibre exposure, as a result of crushing from vandalism andvehicle movements, considered to be high;

• Astorage area for oils, fuels, greases and lead acidbatteries weas noted to have considerable stained soilmaterial in and around the building. Sampling of these soilsconfirmed that they are above guideline levels for TPH'sand 8enzo(a) pyrene;

• Hydrocarbon stained areas were noted around the antiquevehicle storage area and the workshops, as a result ofleads from stored vehicles, maintenance and restorationactivities. These soils are likely to be above guideline levelsfor TPH's and inorganics;

• Some hydrocarbon stained soils were observed in theequipment shed in the south-western corner of the site, thisarea may be above guideline levels for TPH's andinorganics;

• The main dam to the east of the workshops accepts allwaters from the workshops, storage areas and coal finescells. The level of sludge in this dam is unknown and thepotential for metals and hydrocarbon contaminants in thesludge is considered by ERM to be high;

• Leachate water from the coal fines cells appears to bedrained to a storage dam on the main workshop level of thesurface facilities. A pipe was noted in the wallapproximately one metre above the current water level. Thepipe discharges into the dam wall above a drain, whichflows around the workshops and discharges to a gully tothe north-west of the workshops. The water in this dam islikely to be highly saline given its source in the coal finescells and. may be affecting aquatic ecosystems in thedrainage line to which it drains;

• A 205 Litre drum labelled as containing Ethyl Methyl Ketone(a hydrocarbon solvent) was observed stored at theworkshop area to the south of the coal fines cells. Someimpacted soils are likely to occur in this area as a result of

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maintenance, material preparation (sand blasting) andpainting activities;

• The Bath-house, lamp room and Stores building associatedwith the Maitland Extended NO.2 Colliery, locatedapproximately 2.4 kilometres to. the south of the AyrfieldNo..3 Colliery pit top area, contains broken asbestossheeting material, burnt 205L drums of ash material, friableasbestos insulation materials, ell stained pavement andsoil, an open landfill area containing asbestos anddrummed materials and a large number of damaged leadacid batteries. The area is accessed by the public and issubject to rubbish dumping of general wastes and a largeamount of oyster shell was observed in this area; and

• The site contains a large amount of disturbance associatedwith mining activities in the area, at lease six undergroundcollieries and one open cut mine associated haul roads,waste emplacements and coal handling areas, whichoperated on the land holding between the early 1900's and1985. Apart from the Ayrfield Co.lliery pit top area, alreadydiscussed, the other sites have significant areas ofdisturbed soil, coal waste and ash materials exposed.These areas of disturbed soil, coal waste and ash materialsexposed. These areas are eroding and contributing tosedimentation and potential acidification of drainage linesand Black Creek.

84 The Conclusions and Recommendations section of Appendix M of the

SSS Study states:

Based o.n review of the information supplied by LWP Property andsite inspection observations, HLA concludes that the site has beenhistorically used for purposes which have had the potential tocause land contamination, including:

• Coal mining activities including coal fine tailings and rejectstockpiles (chiiter dumps). .

• Old mine building areas reporting hydrocarbon-like stainingof unsealed floors and walls.

• Potential sto.rage and use of chemicals within workshopand maintenance sheds areas and abrasive grit blastingareas.

• Uncontrolled landfilling of former coal collection cells.

• Storage of derelict machinery including bus/automobiles.

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85 The respondents submit that the relevant findings in the SSS Study are

stated in its Executive Summary as follows:

Contamination and Subsidence

Areas principally in the centre of the site at the former AyfieldColliery, contain contaminated land and subsidence impacts as aresult of past mining and landfill activities. These areas have beenassessed as part of the SSS Study and, where appropriate, landuses have been designated to these areas that will minimisepotential risks to the population. Preliminary investigationsconclude that these areas are able to be managed andrehabilitated prior to development. Recommendations have beenput forward with regard to future management and monitoring ofthose areas. Further detailed studies of these areas will beundertaken prior to any applications for subdivision and works inthese locations. These areas will be developed as the later stagesof the Huntlee development.

86 The respondents then submit that those findings are sufficiently and

accurately reproduced in the Department document appended to the

briefing note before the Minister as follows:

Some areas of the site have been found to contain contaminatedland as a result of former mining and landfill activities (seeFigure 2 below).

Remediation Notices of Preventative Action are currently in placefor the former Ayrfield Colliery property. These notices require anumber of on-going management and monitoring measures to beput in place.

The proponent has outlined that further detailed investigations ofthis and other affected areas will be undertaken prior to anyapplications for subdivision and works in these locations.Under SEPP 55 - Remediation of Land, contamination andremediation of contaminated land must be considered in regardsto a rezoning proposal.

Recommendation

A recommendation has already been made for the requirement ofthe preparation of a DCP that considers contamination, and DGRsfor future project applications will require consideration of thisissue.

87 There follows an odd sentence which the respondents submit, and I

accept, should be construed as a submission to the Minister: "The

planning authority, in this case the Minister, has considered whether the

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land is contaminated and is satisfied the land will be suitable for mixed

used development (including residential and recreational) purposes after

remediation has been carried out".

88 Curiously, Figure 2 referred to in the first sentence of the passage quoted

at [86] above does not in fact cast any light on the statement in that

sentence.

89 I accept that, hypothetically, a Department briefing note to the Minister

may be a "report" referred to in cl 6(2) of SEPP 55 if it specifies the

findings of a preliminary investigation of the land carried out in accordance

with the contaminated land planning guidelines.

90 However, in my opinion, in this case the relevant findings in the SSS Study

are as submitted by the applicant. They are much more numerous and

specific than the Executive Summary in the SSS Study on which the

respondents rely. Clause 6(2) required the "findings", not a short and

general summary, to be the focus of the Minister's regard. It is an

undemanding requirement. The respondents attribute a construction to

the word "findings" in cl 6(2) which, in my view, is far too broad and unduly

waters down the content of the planning authority's obligation in the

important context of environmental contamination. The findings were not

specified in documents before the Minister nor did the Minister otherwise

see them. Consequently, the Minister could not and did not comply with

the prescriptive requirements of cl 6(2).

91 If I am in error and the quoted Executive Summary in the SSS Study

annotated at [85] above contains the "findings", then in my view the

"findings" in at least the second and third sentences therein were not,

referred to in the Briefing Note appended document quoted at [86] and the

Minister therefore did not consider them.

- 41 -

Compliance with cl 6(1)(b) and (c) of SEPP 55

92 Clause 6(1)(b) and (c) required the Minister to attain certain states of

satisfaction - relevantly, that the contaminated land, if remediated, will be

suitable for all the purposes for which it is permitted to be used and that it

will be so remediated before it is used for those purposes. The

respondents submits that the Minister "shared in" the necessary states of

satisfaction.

93 There is no summary of the remediation issues identified in the SSS Study

in the documents that were before the Minister. There are two references

to remediation consisting of three lines each in the briefing note. Apart

from those two references, which are inadequate, the Department simply

submitted to the Minister that he "had considered" certain matters and

"was satisfied" of other matters: see [87] above. Clause 6(1) requires the

Minister to be "satisfied" of certain matters. Satisfaction in this context

must mean a genuine satisfaction based on a review of the relevant

materials or, at least, a summary of those materials. I considered the

meaning of the word "satisfied" in the context of SEPP 55 in Australians for

Sustainable Development Ine v Minister for Planning [2011] NSWLEC 33. I

said at [218] - [219] and, after reviewing the authorities, concluded at [232]

as follows:

218 Where the exercise of a statutory power depends upon theformation of a subjective state of satisfaction or opinion, thedecision to form the state of satisfaction or opinion is not anobjective determination of the subject matter of that state ofsatisfaction or opinion. Rather, it is a subjective decision as tosatisfaction or opinion regarding that subject matter. It is thatsubjective decision against which judicial review is available.

219 A determination that the decision-maker is "satisfied" as to astatutory criterion which must be met before the decision-maker isempowered or obliged to act goes to the jurisdiction of thedecision-maker and is reviewable. The grounds of review wereexpressed as follows in Commissioner of Police v Ryan [2007]NSWCA 196, 70 NSWLR 73 at [47] per Basten JA (Spigelman CJand Santow JA agreeing):

Generally speaking, the principles to be applied in caseswhere th~ jurisdictional fact is a state of satisfaction or

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opinion are to be traced back to such authorities as R vConnell ; Ex parte Hetton Bellbird Collieries Ltd(1944) 69 CLR 407, where, at 430, Latham CJ stated:Thus, where the existence of a particular opinion is made acondition of the exercise of power, legislation conferring thepower is treated as referring to an opinion which is suchthat it can be formed by a reasonable man who correctlyunderstands the meaning of the law under which he acts. Ifit is shown that the opinion actually formed is not anopinion of this character, then the necessary opinion doesnot exist.As noted in more recent cases, such as Buck v Bavone(1975-76) 135 CLR 110 at 118 (Gibbs J), "the authoritymust act in good faith; it cannot act merely arbitrarily orcapriciously". Similarly, misdirection as to law, failure toconsider matters required to be considered or to ignoreirrelevant matters will establish a basis for challenge, aswill a decision which "appears so unreasonable that noreasonable authority could properly have arrived at it". Seealso Minister for Immigration and Ethnie Affairs v Wu ShanLiang (1996) 185 CLR 259 at 274-276 (Brennan CJ,Toohey, McHugh and Gummow JJ) and Minister forImmigration and Mu/tieultural Affairs v Eshetu[[1999] HCA 21],(1999) 197 CLR 611 at[133]-[138](Gummow J).

232 The law in this area of subjective jurisdictional fact may bestill evolving. To date, it has evolved, I think, to the point where itcan be said, in relation to reasonableness, that the question is notwhether the court would have formed the required state ofsatisfaction or opinion but whether the decision-maker could haveformed it reasonably. If there is any difference between thispositively expressed test and the negatively expressedWednesbury test of unreasonableness in discretionary decision-making, it is subtle. The subjective jurisdictional fact decision mayalso be infected by error for other reasons which may well overlap:if the decision-maker did not act in good faith, acted arbitrarily orcapriciously, failed to consider matters required to be consideredor took irrelevant matters into account, misdirected itself in law, orfailed to address the right question; findings were based oninferences of fact unsupported by some probative material onlogical grounds; or it was not open to the decision-maker toengage in the process of reasoning in which it did engage and tomake the findings it did make on the material before it.

94 The evidence of what was before the Minister shows that he never had the

opportunity to form such a state of satisfaction.

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Whether breach of cl 6 of SE PP 55 spells invalidity

95 The respondents submit that breach of cl 6(1) and (2) of SEPP 55 has no

invalidity consequence.

96 The test for invalidity stated in Project Blue Sky Inc v Australian

Broadcasting Authority [1998] HCA 28,194 CLR 355 at [91] is as follows:

An act done in breach of a condition regulating the exercise of astatutory power is not necessarily invalid and of no effect. Whetherit is depends upon whether there can be discerned a legislativepurpose to invalidate any act that fails to comply with the condition.The existence of the purpose is ascertained by reference to thelanguage of the statute, its subject matter and objects, and theconsequences for the parties of holding void every act done inbreach of the condition. Unfortunately, a finding of purpose or nopurpose in this context often reflects a contestable judgment. Thecases show various factors that have proved decisive in variouscontexts, but they do no more than provide guidance in analogouscircumstances. There is no decisive rule that can be applied; thereis not even a ranking of relevant factors or categories to giveguidance on the issue.

97 The respondents invoke Attorney General of NSW v World Best Holdings

Ltd [2005] NSWCA 261, 63 NSWLR 557 at [108] where Spigelman CJ

(Mason P and Tobias JJA agreeing) said:

There may, of course, be legislative requirements with respect towhich it is appropriate to conclude that Parliament intended everybreach to lead to invalidity. There are other requirements where itis appropriate to consider the particular circumstances of the casewhen determining what are the consequences of the defectivecompliance.

98 The respondents also invoke Nature Conservation Council of New South

Wales Inc v The Minister Administering the Water Management Act 2000

[2005] NSWCA 9; 137 LGERA 320 at [93] where Spigelman CJ concluded

that whilst, on balance, various textual indications would support a

conclusion of invalidity, it was "however. ..the factual context ... rather than

the textual context of the legislative scheme, [which was] determinative".

99 The respondents submit that in the present case, the factual context,

including the following, tells strongly against invalidity:

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(a) a rezoning which covers a very large area (1,702 ha) and

numerous properties;

(b) a development which will be undertaken in stages over 20-25

years;

(c) cl 8(6) of the MD SEPP (set out at [76] above), and;

(d) cl 25(2)(f) of the Huntlee MD Amending SEPP requiring

preparation of a OCP providing for the amelioration of site

contamination.

100 I do not accept the respondents' submission. The question is, whether

there can be discerned a legislative purpose that non-compliance with cl 6

of SEPP 55, being an instrument made under s 37(1) of the EPA Act,

should lead to invalidity. Rather than providing a State-wide planning

approach for the remediation of contaminated land, SEPP 55 would be

relegated to a dead letter if breaches, at least of the variety committed in

this case, did not lead to invalidity. The fact that the development is of a

large scale, and is proposed over a long time, weighs in favour of invalidity

since it makes compliance even more important. Clause 8(6) of the MD

SEPP and cl 25(2)(f) of the Huntlee MD Amending SEPP do not, in my

view, tell against invalidity. In my opinion the Huntlee MD SEPP

amendment is invalid.

Whether the Recommendation decision is justiciable

101 Huntlee submits that the Minister's power to recommend the making of a

SEPP is a non-statutory executive power and, as such, Minister's

Recommendation decision is not justiciable. It argues that the opening

words of s 38 of the EPA Act, "Before recommending", assume the

existence of a non-statutory executive power to recommend: see [53]

above.

- 45 -

102 I disagree. In my opinion, the Minister's power to recommend is a

statutory power. Section 38(1) implicitly empowers the Minister to make a

recommendation. Itis unlikely that the legislature intended that an

autonomous common law power of recommendation should operate in an

area governed by statute. The exercise of such a statutory power is

justiciable: Stewarl v Ronalds [2009] NSWCA 277,76 NSWLR 99. In that

case Allsop P (Hodgson JA and Handley AJA agreeing) held (omitting

most citations):

39 Until 1981, the apparently prevailing view was that the exercise ofpower by a representative of the Crown was not reviewable:... Bythe 1980s, a distinction had arisen between the review of powerunder statute by Ministers (which were reviewable) and decisionsby a Crown representative, acting on the advice of a responsibleminister (which were not) ....

40 The High Court in Rv Toohey and FAI v Winnecke made clearthat in some cases the courts could examine the exercise of powerunder a statute by a representative of the Crown. See also MasonJ in Rv Toohey at 219-221 and Council of Civil Service Unions vMinister for the Civil Service [1985] AC 374 concerning the reviewof the non-statutory prerogative.

41 Whatever may be the debate as to the place of judicial reviewoutside the exercise of statutory power and by the Crown in theexercise of non-statutory executive or prerogative power: seegenerally M Aronson et at Judicial Review of Administrative Action,4thed (2009), Sydney Lawbook Co at 116-117 and 124-134, thepower exercised here by the Lieutenant-Governor was pursuant tostatute: the Constitution Act 1902, ss 35C and 35E.

42 Central to the identification of the kinds of decisions amenable toreview by the courts is the suitability of the subject for judicialassessment and, in particular here, whether the assessment of thelegitimacy or otherwise of the decision depends on legal standardsor by reference to political considerations ....

43 It is not necessary or appropriate to attempt a definition of thelimits of judicial power by reference to the notion of justiciability.Essential to the task is the identification of the controversy, itslimits and character. Often the nature and extent of rights ofindividuals, whether of a proprietary or other character, as affectedby the asserted wrong will bespeak a justiciable controversy. Thepresence of standards capable of being assessed legally may dolikewise. Difficult questions arise if a subject is justiciable, but it issaid not to be "appropriate" for the courts to interfere: .... In hisdiscussions in Baker v Carr, Brennan J recognised a degree oflack of coherence in the subject matter of non-justiciability and its

- 46 -

treatment. Brennan J in Baker v Carr and Gummow J in Re Oitfortcounselled against sweeping generalisations and urged a specificanalysis of the particular controversy in issue.

103 If I am in error and the Minister's power was a non-statutory executive

power, in my opinion it would still be justiciable. In the landmark decision

in Council of Civil Service Unions v Minister for the Civil Service [1985]

AC 374 (CCSU), the House of Lords held that the Prime Minister's

exercise of her non-statutory prerogative powers to ban union membership

at Government Communications Headquarters was subject to judicial

review. CCSUhas been followed in England; it was accepted in the High

Court of Australia in Director of Public Prosecutions (SA) vB [1998]

HCA 45, 194 CLR 566 at 569 and Jarratt v Commissioner of Police (NSW)

[2005] HCA 50,224 CLR 44 at 65; and it has been accepted by several

other Australian courts. The cases are collected in M Aronson, Judicial

Review of Administrative Action 4th ed (2009), Sydney Lawbook Co at 124-

125. Earlier, in Rv Toohey; ex parte Northern Land Council (1981)

151 CLR 170, although prerogative powers were not in issue, Mason J at

219-221 and Wilson J at 282-283 indicated that prerogative powers were

generally reviewable.

104 Further, the validity of SEPPs made by the Governor have been

challenged in a number of cases without any suggestion that either the

Governor's decision to make the SEPP or the recommendation of the

Minister on which it was based were not amenable to judicial review:

Darling Casino Ltd v Minister for Planning [1995] NSWLEC 62; Minister for

Urban Affairs and Planning v Rosemount Estates Pty Ltd [1996]

NSWSC 348,91 LGERA 31; and Save the Showground for Sydney Inc v

Minister for Urban Affairs and Planning (1997) 95 LGERA 33. The fact

that ss 37 - 39 were in a different form when they were decided does not

affect the principle. In Save the Showground at 34-35 Gleeson CJ said:

The making of SEPP 47 involved an exercise of power conferredupon the Executive Government by the relevant legislation. Thefunction of the court is to address any material legal constraints,and to decide whether, in the facts and circumstances of the case,they result in invalidity as claimed. It is not for the court to decide

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what is a proper use for the Showground. Our task is to determine,in the light of the arguments presented on behalf of the appellant,whether the making of SEPP 47 was a valid exercise of a powerwhich the Parliament has vested in the Governor, acting on theadvice of the Minister.

Summary of Conclusions re Ground 1

105 The Minister's Recommendation to the Governor to make the SEPP is

justiciable and was subject to the provisions of cl 6 of SEPP 55. These

provisions are not inconsistent with the provisions of the MD SEPP. The

Minister contravened cl 6 with the consequence that the Recommendation

was invalid and the Huntlee MD SEPP Amendment is accordingly invalid.

For those reasons I uphold Ground 1.

GROUND 2: TAKING INTO ACCOUNT AN IRRELEVANTCONSIDERATION OR JURISDICTIONAL ERROR

106 Ground 2 is that in making the Recommendation decision the Minister took

into account an irrelevant consideration, namely the 2010 Agreement: see

[27] - [32] above. With a slightly difference nuance, the applicant

alternatively or further submits that it was a jurisdictional error that infected

the Recommendation decision for the Minister to have considered that the

2010 Agreement was made in accordance with the EPA Act.

107 There is no dispute that the Minister, on the basis of the material before

him, must have assumed that the 2010 Agreement was made in

accordance with the EPA Act. That is also my conclusion.

108 Clause 3 of the 2010 Agreement recites that it "constitutes a planning

agreement within the meaning of s 93F of the [EPA] Act". The applicant's

contention is that it is not a planning agreement within the meaning of

s 93F because it contravenes the mandatory requirement of s 93F(3)(g),

which provides:

(3) A planning agreement must provide for the following:- 48-

(g) the enforcement of the agreement by a suitablemeans, such as the provision of a bond or guarantee,in the event of a breach of the agreement by thedeveloper.

109 The 2010 Agreement does not provide for a guarantee or bond or any

other security. The applicant submits that is what s 93F(3)(g) requires.

The respondents submit that the 2010 Agreement does provide for its

enforcement "by suitable means" in the event of a breach by the developer

through cl 9.2, under which the land owner agreed to procure the

registration of the 2010 Agreement under the Real Property Act 1900 thus

binding successors in title, and cl 9.4 which empowers the Minister to

lodge a caveat to protect that position pending registration. In fact the

agreement was registered and.the caveat was lodged in the interim and

withdrawn after registration.

Whether the 2010 Agreement provides for enforcement by "suitable means"

110 As to the word "enforcement" in s 93F(3)(g), it has been held that the

expression "enforceable" in money lending legislation is not limited to

judicial or curial remedies and includes the appointment of a receiver as a

means of attaining payment or repayment of the debt for money lent and

interest Mayfair Trading Co Pty Ltd v Dreyer (1958) 101 CLR 428 at 448-

449.

111 The 2010 Agreement makes provision for two kinds of development

contributions (see [32] (c) and (d) above):

(a) transfer of the "Conservation Offset Lands" comprising some

5,612 hectares of land for environmental conservation; and

(b) monetary contributions of $1.1 million, of which $1 million

was for management of the Conservation Lands and

$100,000 for conservation of personia pauciflora in the North

Rothbury area.

- 49·

112 In respect of the transfer of the Conservation Offset Lands, the applicant

does not contend that there is non-compliance with s 93F(3)(g). That may

be because cl 2.4 provides that if the Minister does not transfer the

Conservation Offset Lands as required by the 2010 Agreement, the Land

Owner consents to the Minister compulsorily acquiring them for $1 in

accordance with the Land Acquisition (Just Terms Compensation) Act

1991.

113 Accordingly, the only issue is whether the 2010 Agreement provides for its

enforcement by a suitable means, such a provision of a bond or

guarantee, in the event of a breach of the agreement by the developer in

respect of the monetary contribution of $1.1 million.

114 Section 93C of the EPA Act provides that the term "planning agreement"

means a voluntary agreement referred to in section 93F. Voluntary

planning agreements are provided for in Subdivision 2 (ss 93F-93L) of

Division 6 of the EPA Act, which relevantly provides:

93F Planning agreements

(1) A planning agreement is a voluntary agreement or otherarrangement under this Division between a planningauthority (or 2 or more planning authorities) and a person(the developer): .(a) who has sought a change to an environmental planning

instrument, or(b) who has made, or proposes to make, a development

application, or(c) who has entered into an agreement with, or is

otherwise associated with, a person to whomparagraph (a) or (b) applies,

under which the developer is required to dedicate land freeof cost, pay a monetary contribution, or provide any othermaterial public benefit, or any combination of them, to beused for or applied towards a public purpose.

(3) A planning agreement must provide for the following:(a) a description of the land to which the agreement

applies,(b) a description of:

(i) the change to the environmental planninginstrument to which the agreement applies, or

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(ii) the development to which the agreement applies,(c) the nature and extent of the provision to be made by

the developer under the agreement, the time or timesby which the provision is to be made and the mannerby which the provision is to be made,

(d) in the case of development, whether the agreementexcludes (wholly or in part) or does not exclude theapplication of section 94, 94A or 94EF to thedevelopment,

(e) if the agreement does not exclude the application ofsection 94 to the development, whether benefits underthe agreement are or are not to be taken intoconsideration in determining a developmentcontribution under section 94,

(f) a mechanism for the resolution of disputes under theagreement,

(g) the enforcement of the agreement by a suitable means,such as the provision of a bond or guarantee, in theevent of a breach of the agreement by the developer.

(10) A planning agreement is void to the extent, if any, to which itrequires or allows anything to be done that, when done,would breach this section or any other provision of this Act,or would breach the provisions of an environmental planninginstrument or a development consent applying to the relevantland.

93G Information about planning agreements

(1) A planning agreement cannot be entered into, and aplanning agreement cannot be amended or revoked, unlesspublic notice has been given of the proposed agreement,amendment or revocation, and a copy of the proposedagreement, amendment or revocation has been available forinspection by the public for a period of not less than 28 days.

93H Registered planning agreements to run with land

(1) A planning agreement can be registered under this section ifthe following persons agree to its registration:(a) if the agreement relates to land under the Real

Property Act 1900-each person who has an estate orinterest in the land registered under that Act, or

(b) if the agreement relates to land not under the RealProperty Act 1900-each person who is seised orpossessed of an estate or interest in the land.

(3) A planning agreement that has been registered by theRegistrar-General under this section is binding on, and isenforceable against, the owner of the land from time to timeas if each owner for the time being had entered into theagreement.

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931 Circumstances in which planning agreements can orcannot be required to be made

(1) A provision of an environmental planning instrument (being aprovision made after the commencement of this section):(a) that expressly requires a planning agreement to be

entered into before a development application can bemade, considered or determined, or

(b) that expressly prevents a development consent frombeing granted or having effect unless or until a planningagreement is entered into,

has no effect.(2) A consent authority cannot refuse to grant development

consent on the ground that a planning agreement has notbeen entered into in relation to the proposed development orthat the developer has not offered to enter into such anagreement.

(3) However, a consent authority can require a planningagreement to be entered into as a condition of adevelopment consent, but only if it requires a planningagreement that is in the terms of an offer made by thedeveloper in connection with:(a) the development application, or(b) a change to an environmental planning instrument

sought by the developer for the purposes of making thedevelopment application,

or that is in the terms of a commitment made by theproponent in a statement of commitments made under Part3A.

(4) In this section, planning agreement includes any agreement(however described) containing provisions similar to thosethat are contained in an agreement referred to in section93F.

93J Jurisdiction of Court with respect to planningagreements

(1) A person cannot appeal to the Court under this Act againstthe failure of a planning authority to enter into a planningagreement or against the terms of a planning agreement.

(2) This section does not affect the jurisdiction of the Courtunder section 123.

93K Determinations or directions by Minister

The Minister may, generally or in any particular case or class ofcases, determine or direct any other planning authority as to:

(a) the procedures to be followed in negotiating a planningagreement, or

(b) the publication of those procedures, or(c) other standard requirements with respect to planning

agreements.

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115 For present purposes, the most significant provisions of Subdivision 2 of

Division 6 are as follows:

(a) Sub-section 93F(1) relevantly defines a "planning agreement"

as "a voluntary agreement or other arrangement under this

Division between a planning authority .. and a person

(the developer) ... (a) who has sought a change to an

environmental planning instrument. .. under which the

developer is required to dedicate land free of cost, pay a

monetary contribution, or provide any other material public

benefit, or any combination of them, to be used for or applied

towards a public purpose".

(b) Sub-section 93F(2) provides an inclusive definition of "public

purpose" for the purposes of sub-s 93(1).

(c) Sub-section 93F(3) provides that a "planning agreement

must provide for the following". It then lists seven

requirements, the last being "the enforcement of the

agreement by a suitable means, such as the provision of a

bond or guarantee, in the event of a breach of the agreement

by the developer": s 93F(3)(g).

(d) Section 93G sets down certain procedures in relation to

planning agreements. A planning agreement cannot be

entered into or amended or revoked unless it has been made

available for inspection by the public for a period of 28 days

or more: s 93G(1). Sub-sections (3) and (4) provide for

notification to the Minister or the relevant council, and sub-

s (5) provides for annual reporting of compliance with the

agreement.

(e) Section 93H provides for registration of a planning

agreement so as to make it binding on, and enforceable

against, the owner or owners of the land to which it relates as

if each owner was party to the agreement: see, in particular,

sub-s (3).

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(f) Section 931governs the circumstances in which planning

agreements can or cannot be required to be made by

consent authorities, and s 93J provides that there is no

appeal against the failure of planning authority to enter into a

planning agreement or against the terms of a planning

agreement.

(g) Section 93K empowers the Minister generally or in any

particular case or class of case, to determine or direct any

other planning authority as to the procedures to be followed

in negotiating a planning agreement, the publication of those

procedures or other standard requirements with respect to

planning agreements. Section 93K empowers the Minister to

make requirements which are additional to, not in substitution

of, the requirements in s 93F. Nothing in s 93K suggests that

the Minister can vary or waive the statutory requirements as

to the content of planning agreements (s 93F) or the

procedures to be followed in respect of them (s 93G).

116 These provisions relating to voluntary planning agreements were

introduced by the Environmental Planning & Assessment Amendment

(Development Contributions) Act 2005, which commenced on 8 July 2005.

The Explanatory Note contains the following overview:

The object of this Bill is to amend the Environmental Planning andAssessment Act 1979 (the Principal Act) to extend the means bywhich planning authorities may obtain development contributionsto be applied for the provision of public amenities and publicservices and for other public purposes. As an alternative toobtaining contributions towards public amenities and publicservices through the imposition of conditions of developmentconsent (as is currently provided for under section 94 of thePrincipal Act), a council or other consent authority may (ifauthorised by a development contributions plan) impose acondition of development consent that requires applicants to pay alevy of the percentage of the proposed cost of the development.In addition, planning authorities (including the Minister) will bespecifically authorised to obtain development contributions for anypublic purpose through voluntary planning agreements with thedeveloper.

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117 The Second Reading Speech in the Legislative Assembly included the

following comments on the purpose of the voluntary planning agreement

provisions and the mischief that they were intended to address (Hansard,

.8 December 2004, the Hon Craig Knowles MP, pp 13539-13540):

The practice of entering into planning arrangements to provideagreed infrastructure and appropriate public benefits, in addition toor as an alternative to section 94, is not new. Planningarrangements have existed for some years and in recent timeshave merged as a market response for development orredevelopment of large-scale sites in single ownership such as theAustralian Defence Industries site at St Marysand in theGreystanes development.

However, the legal framework surrounding agreements isuncertain and the existing practice is often hidden from publicscrutiny and is, therefore, unaccountable. The bill seeks to makebest practice in planning arrangements common practice. Theamendments set out in the bill clarify and make the approach lesscumbersome by expressly acknowledging the role planningagreements play as part of the development contributions system.Planning authorities and developers will be able to voluntarily enterinto planning agreements under which the developer is required todedicate land free of cost, pay a monetary contribution or provideany other material public benefit, or any combination of them, to beused for or applied to a public purpose.

The bill will enable communities and the Government to scrutinisethe public infrastructure decisions made by planning authorities.The absence of a regulated, fair and transparent system ofplanning agreements creates an environment conducive to somepractices recently reported in the press. However, the system ofplanning agreements provided for in the bill will ensure that allarrangements between planning authorities and developers aretransparent and in the public interest so that the public have theopportunity to comment to the responsible planning authority aboutthe proposed planning agreement and that planning authorities areaccountable in the collection and expenditure of funds and theprovision of facilities.

The regulations will contain safeguards to ensure that there is noabuse of planning agreements by either planning authorities ordevelopers. Planning agreements must promote the objects of theEnvironmental Planning and Assessment Act and the applicableenvironmental planning instrument. They must be directedtowards a legitimate planning purpose and provide for areasonable means of achieving that purpose. The publicinterest will be the overriding consideration. The proceduresin the regulations governing the entering into of planningarrangements will be transparent, accessible and fair to all parties.They will provide for effective public participation and

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accountability and will protect the regulatory independence of theplanning authority involved in negotiating an agreement.

In order to ensure open, transparent, accountable and consistentdecision making, planning agreements must be weighedagainst other planning considerations when the consentauthority determines an application.

(emphasis added)

118 The respondents submit that s 93F(3)(g) does not necessitate the

provision of a guarantee or bond or other security, and that the

2010 Agreement provides for enforcement of the Agreement by suitable

means, in the following ways:

(a) pursuant to cl 9.2, the Land Owner agreed to procure the

registration of the 2010 Agreement under the Real Property

Act. An arrangement of this kind does not occur by force of

the EPA Act alone. It requires agreement of the parties: see

s 93H(1). Registration creates an important mechanism for

enforcing the developer's obligations against successors in

title. Additional temporary security for the registration

obligation, designed to bridge the time until registration, is

provided by the provisions for lodgement of a caveat by the

Minister under cl 9.4. The respondents argue that if Huntlee

were to become insolvent, then the Land would no doubt be

sold to a solvent successor in title who would be bound to the

2010 Agreement as a result of its registration; and

(b) pursuant to cl 7 of the 2010 Agreement, any party may bring

proceedings to enforce it.

119 Clause 7.1 provides that the 2010 Agreement "may be enforced by any

Party in any Court". Clause 7.2 (a) notes that nothing in the

2010 Agreement is to be taken to prevent enforcement by bringing

proceedings in this Court. Schedule 1 is headed "Section 93F

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Requirements". I reject the respondents' submission that the requirements

of s 93F(3)(g) are satisfied by cl 7. To provide that a binding agreement

may be enforced in a court goes without saying. Section 93F(3)(g)

requires much more.

120 The applicant disputes that clauses 9.2 and 9.4 satisfy s 93F(3)(g), and

submits that paragraph 4 in Schedule 10 of the 2010 Agreement allows the

Land Owner to contract out of s 93H(3).

121 Paragraphs 1,3 and 4 of Schedule 10 provide as follows:

1. Land Owner's right to sell Land

(a) Except in respect of any part of the Land where the PlanningAgreement has been released and discharged underparagraph 1 of Schedule 6, the Land Owner must not sell,transfer or dispose of the whole or any part of the Land inexcess of 10 hectares in aggregate otherwise than incircumstances where paragraph 1(b) of this Schedule 10 orparagraph 1(c) of this Schedule 10 applies, unless before itsells, transfers or disposes of any such part of the Land toanother person (Transferee).(i) it satisfies the Minister acting reasonably that the

proposed Transferee is financially capable of complyingwith such of the Land Owner's obligations under thisdeed (including without limitation, by providing financialstatements for, and credit standing of, the proposedtransferee) as the Minister acting reasonably shallnominate must be adopted by the Transferee(Required Obligations);

(ii) except as provided in the deed set out in Annexure Awhich is signed in accordance with paragraph 1(a)(iii)of this Schedule, the rights of the Minister under thisdeed are not diminished orfettered in any way;

(iii) the Transferee signs a deed in the form set out inAnnexure A to the Minister containing provisions underwhich the Transferee agrees to comply with theRequired Obligations as if it were the Land Owner(including obligations which arose before the transfer orassignment) with respect to the land being sold,transferred or disposed of;

(iv) any default by the Land Owner (other than a materialdefault constituted by the appointment of a Controller ofthe Land Owner by a Financier) has been remedied bythe Land Owner by a Financier) has been remedied by

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the Land Owner or that Financier (as the case may be),unless that default has been waived by the Minister;and

(v) the Land Owner and the Transferee pay the Minister'sreasonable Costs in relation to that assignment; and

(b) The Land Owner acknowledges that if it sells, transfers ordisposes of any Land which is not in excess of 10 hectares,nothing in this Planning Agreement requires the Minister torelease the Planning Agreement insofar as it relates to thatLand unless and until the requirements of paragraph 1 ofSchedule 6 have been complied with.

(c) For the purposes of paragraph 1 of this Schedule 10, the

following will be taken to be the sale, transfer or disposal of

the whole or any part of the Land in excess of 1 hectares in

aggregate:

(i) one transaction where that transaction results inthe sale, transfer or disposal of Land in excess of10 hectares;

(ii) two or more transactions where the purchaser,transferee or disponee are different people andthose transactions result in the sale, transfer ordisposal of Land in excess of 10 hectares inaggregate, but excluding the area of Land:A. comprised in any Residential Lot which has

been sold, transferred or disposed to apurchaser, transferee or disponee; and

B. which has been subject to the release anddischarge of the Planning Agreementpursuant to paragraph (b) of Schedule 6.

(iii) two or more transactions where the purchaser,transferee or disponee is the same person (orpersons) where the Minister, acting reasonably,determines that those separate transactionsshould be regarded as, in substance, onetransaction.

3. Release

If the Land Owner sells, transfers or disposes of the wholeor any part of the Land in excess of 10 hectares inaggregate and fully satisfies the requirements ofparagraph 1 of this Schedule 10, the Land Owner will bereleased from its obligations under this PlanningAgreement with respect to that Land being sold, transferredor disposed of.

4. Land Owner to retain obligations

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If the Land Owner sells, transfers or disposes of the wholeor any part of the Land in the manner identified inparagraph 1(a) of this Schedule 10 to a Transferee:

(a) the Land Owner may elect, by way of notice to theMinister, to continue to be bound by the obligationsunder the PlanningAgreement in respect of theLand in lieu of the Transferee;

(b) the Minister agrees to release the Transferee fromthe requirement to comply with the obligations underthe PlanningAgreement in respect of that Land; and

(c) the Minister will do all things reasonably necessaryto effect the release included in paragraph 4(b) ofthis Schedule 10, including entering into a furtheragreement if necessary with the Transferee andLand Owner.

122 Under paragraph 4 of Schedule 10, the developer can elect, when selling

the Land, whether to retain the obligations under the Planning Agreement

or have them passed on to the transferee, who must be financially capable

of complying with those obligations under paragraph 1(a)(i). This, the

applicant submits, constitutes contracting out of s 93H of the EPA Act, and

reinforces the view that s 93F(3)(g) requires something in the nature of a

guarantee or security for the developer's obligations.

123 The respondents' rejoinder is as follows. The obligation to pay the

monetary contributions of $1.1 million is plainly an obligation "under this

deed" (the expression used in paragragh 1(a)(i) of Schedule 10) but is not

an obligation "under the Planning Agreement in respect of the Land" (the

expression used in cl 4 of Schedule 10). Rather, the environmental

contribution is to be paid towards the management of the Conservation

Offset Lands and the conservation of personia pauciflora in the North

Rothbury area. It follows that paragraph 4 of Schedule 10 says nothing

about the obligation under the 2010 Agreement in respect of the monetary

contribution of $1.1 million and has no impact on the operation of s 93H(3)

insofar as that environmental contribution is concerned. Consequently, the

respondents submit, the obligation in respect of the environmental

contribution will run with the land and bind, and be enforceable against,

any future owner as if that owner had entered into the 2010 Agreement.

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--- ---~------------------------

124 I accept the respondents' submission and reasoning that the obligation to

make monetary contributions of $1.1 million is not an obligation "with

respect to the Land" and therefore cannot be released under paragraph 4

of Schedule 10. Consequently, it is not directly relevant to the s 93F(3)(g)

issue in this case. Nevertheless, the fact that the transferee can be

released under paragraph 4 of Schedule 10 from the requirement to

comply with obligations "with respect to the Land" seems inconsistent with

s 93H(3). However, as that was not put forward as a discrete challenge to

validity, I say no more about it.

125 Next, the respondents submit that s 93F(3)(g) should relevantly be

construed as referring to enforcement of the agreement by a means which

the Minister reasonably considers to be suitable. In other words, it is not

an objective matter for the Court to determine but entirely a matter for the

Minister's judgment. I do not accept the submission. There are no such

words in s 93F(3). It is not framed by reference to the Minister's subjective

state of satisfaction, in contrast, for example to cl 6(1) of SEPP 55: see

[44] above. In my view, it is an objective question whether s 93F(3)(g) is

satisfied.

126 In my opinion, s 93F(3)(g), by its reference to "suitable means, such as a

bond or guarantee", requires an additional, independent and enforceable

assurance that the developer's promises under the agreement will be

honoured. There is breadth and flexibility in that requirement. Bonds and

guarantees are not exhaustive but the suitable means should be ejusdem

generis. In my view, the requirement is not satisfied by the contractual

provisions on which the respondents rely that the planning agreement be

registered and that a caveat may be lodged pending registration.

Registration binds successors in title (s 93H) and, with the contractual

machinery of novation, merely substitutes one contractual promisor for

another. It provides no additional, independent and enforceable

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assurance for the developer's promises; nor for those of a successor in

title.

127 Next, the respondents submit that as there is no question of "suitable

means" not having been provided in respect of the Conservation Offset

Lands contribution, that is sufficient to satisfy s 93F(3)(g) even if there is

no provision for "suitable means" in relation to the enforcement of the

monetary contributions provision. As I understand it, this submission is

based upon the fact that s 93F(3)(g) refers to "a" (singular) suitable means.

I do not accept the submission. The provision is concerned with

enforcement in the event of breach of the agreement. It cannot suffice if

there are no suitable means for enforcement of the agreement in the event

of a breach of important provisions such as the promise to make monetary

contributions. That would gravely undermine s 93F(3)(g).

Whether the 2010 Agreement an irrelevant consideration

128 An irrelevant consideration is a matter the decision-maker is bound not to

consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA

40,162 CLR 24 at 39-41 per Mason J; Tugan Cobaki Alliance Inc v

Minister for Planning [2006] NSWLEC 396 at [104] per Jagot J.

129 The respondents concede that the 2010 Agreement which, in accordance

with ss 93F-L of the EPA Act had been the subject of notification and

consultation and had attracted many submissions, was a highly relevant, if

not mandatory relevant, consideration.

130 There are no express provisions of the EPA Act which regulate the

Minister's power to recommend the making of a SEPP. Where a power,

such as the Minister's power to recommend, is not expressly confined by

statute, an implied limitation on the factors that may legitimately be taken

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into account in its exercise may nevertheless be found in the subject

matter, scope and purpose of the statute: Peko-Wallsend at [141].

131 In my opinion, if the 2010 Agreement failed to comply with s 93F(3)(g), it

was an irrelevant consideration: Gwanda/an Summer/and Point Action

Group /ne v Minister for Planning [2009] NSWLEC 140, 75 NSWLR 269 at

[144] - [148]. A planning agreement which does not comply with the

planning agreement provisions and safeguards in ss 93F - 93L subverts

the statutory scheme and is an irrelevant consideration: Gwandalan. L10yd

J said at [145] - [148]:.

145 I have noted that neither the MOU nor the deed could be regardedas a planning agreement to which s 93F to s 93L apply ... theParliament has recognised the danger that this sort of agreementcan subvert the proper operation of the planning and assessmentprocess by providing built-in safety procedures, most notably ins 93G - the public notification, the 28 days inspection period andthe associated right to make submission.

146 Although the Minister's discretion is apparently unconfined, Iaccept that there may still be found in the subject matter, scopeand purpose of the statute some implied limitation on the factors towhich the decision-maker may legitimately have regard:Peko Wallsend at 40, noted at [141] above. The MOU and thedeed in the present case are in substance a sort of planningagreement, but neither of which comply with the planningagreement provisions and safeguards. The presence of thestatutory scheme for planning agreements suggests that thesetypes of arrangements have no place consistently with thestatutory scheme; that is, the statute imposes a limitation on thefactors to which the decision-maker may have regard whichexcludes a consideration of such arrangements.

147 I find that there is the implied limitation ...

148 I therefore ... find that by taking into account the existence of bothor either of the MOU and the deed, the Minister took into accountirrelevant considerations.

132 I do not accept the respondents' submission that Gwandalan is relevantly

distinguishable. This principle in Gwandalan is not in my view affected by

the differences between it and the present case. Gwandalan challenged

the Minister's administrative decisions under Part 3A of the EPA Act and

concerned a planning agreement that had not been through the notification

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procedures in s 93G. The present case challenges the Minister's

administrative decision under Part 3 to recommend the making of a SEPP

and concerns a planning agreement that allegedly does not comply with

s 93F(3)(g).

Invalidity

133 The respondents suggest that s 93F(1 0) weighs against a conclusion of

invalidity of the recommendation. I disagree. That provision is not

directed to the mandatory provisions of s 93F(3).

134 The respondents submit that as s 93F(3)(g) is directed towards ensuring

that planning agreements are enforceable, in the event of breach it would

be a very odd outcome, that the legislature cannot have intended, if the

consequence of non compliance was that an otherwise binding agreement

was entirely void, thus relieving the developer of the obligation to make the

contribution.

135 I do not accept this submission. If the planning agreement is entirely void,

then it is not a matter of the developer being relieved of the obligation to

make a contribution. It is a matter of the developer failing to achieve the

desired outcome of rezoning for which it entered into the agreement in the

first place. If the respondents' submission were to be accepted, then non-

compliance with s 93F(3)(g) is of no consequence. That is, there is no

sanction for non-compliance and it does not result in invalidity. Parliament

has mandated the content of planning agreements. Just as the statutory

notification provisions are essential requirements (Gwandalan), so too

must be the provisions mandating the content of planning agreements (at

least in the case of substantial breach). The developer's promises under

the 2010 Agreement are a quid pro quo for obtaining a valid Huntlee MD

SEPP Amendment. Parliament has allowed this sort of agreement but has

strictly regulated its content and public notification.

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136 The whole point of s 93F(3)(g) is to provide an assurance that the

developer's promises will be met, particularly in the event of the

developer's insolvency. That requirement is in the public interest, which

the Second Reading Speech described as "the overriding consideration".

do not accept that parliament intended that this requirement, which it

expressed in mandatory terms, can simply be disregarded without

consequence. The 2010 Agreement lies outside the statutory scheme. As

Lloyd J said in Gwandalan at [146], although such an agreement is

in substance a sort of planning agreement [it does not] comply withthe planning agreement provisions and safeguards. The presenceof the statutory scheme for planning agreements suggests thatthese types of arrangements have no place consistently with thestatutory scheme; that is, the statute imposes a limitation on thefactors to which the decision-maker may have regard whichexcludes a consideration of such arrangements.

137 Next, the respondents submit that the following factual context, and the

consequences of defective compliance, tell against invalidity of the

Recommendation decision:

(a) a rezoning that covers a very large area (1702 hectares) and

numerous properties;

(b) a development which would be undertaken in stages over 20

- 25 years;

(c) the registration and caveat provisions of the 2010 Agreement

bind successors in title to all the obligations under the

agreement and thereby secures the transfer of the

Conservation Offset Lands and the $1.1 million monetary

contribution.

138 I do not accept the submission. Indicators supporting a conclusion of

invalidity of the Recommendation decision include the importance of

s 93F(3)(g) as protection against the developer's breach, particularly if

coupled with insolvency; its mandatory terms; and the fact that the contrary

conclusion would strip s 93F(3)(g) of all efficacy. Further, in this case, it is

not just that the planning agreement did not comply with s 93F(3)(g). In

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addition, the Minister, on the limited material before him, must have

assumed that it did. In my opinion, the Minister's Recommendation

decision is invalid. The factual context does not affect that conclusion.

Relief

139 Finally, the respondents submit that any relief should be limited to a

declaration of unlawfulness because of non-compliance with s 93F(3)(g)

without a declaration of invalidity. That may be an appropriate form of

relief in some cases, as was acknowledged in Project Blue Sky at [100]

where a declaration of unlawfulness and an injunction were granted.

However, in my opinion, it is inappropriate in the case of non-compliance

with.a provision such as s 93F(3)(g) in the circumstances of this case.

140 Accordingly, I uphold Ground 2.

GROUND 3: APPREHENSION OF BIAS

141 Ground 3 is that the Minister's decision to make the Recommendation was

infected by apprehended bias in the form of prejudgment.

142 The NSW Government's formulation of and commitment to the LHRS (the

Lower Hunter Regional Strategy) over time has been summarised above

at [6], [7], and [13] - [18].

143 The applicant submits that:

(a) the overall impression is that the Government was

committed, and had been committed for some years, to

enabling the Huntlee development to proceed;

(b) as the Minister was not provided with the SSS Study but a

short briefing note describing some of the issues at a high

level, a fair minded lay observer might conclude that the

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Minister might not have assessed the MD SEPP Amendment

on its merits, as he was in no position to do so, and instead

made the Recommendation without regard to the merits

because it was consistent with the Government's high level

policy objectives and with the earlier decision to make

Amendment No 35.

144 I substantially adopt the respondent's submissions.

145 The test of apprehended bias is whether a fair-minded properly informed

lay observer might reasonably apprehend that the decision-maker might

not bring an impartial mind to the resolution of the question the decision-

maker is required to decide. Although the test is the same in both curial

and non-curial decision-making, different considerations apply depending

on the nature and role of the administrative decision-maker: Ebner v

Official Trustee in Bankruptcy [2000] HCA 63,205 CLR 337 at 345; F & 0

Bonaccorso Pty Ltd v Canada Bay Council (No 2) [2007] NSWLEC 537,

158 LGERA 250 per Biscoe J at [110] ff, [115]; Re Refugee Review

Tribunal; Ex parte H [2001] HCA 28, 179 ALR 425 at [5]. Ministers are not

judges and their conduct is to be evaluated "in the light of his or her

political role, responsibility and accountability": Minister for Immigration v

Jia Legeng [2001] HCA 17, 205 CLR 507 at [63].

146 The respondents submit that the principle of procedural fairness by

prejudgment is inapplicable because, on its proper construction, s 38 of

the EPA Act is not the source of the Minister's power to recommend. They

submit that the Minister's power to recommend is a non-statutory

executive power which is merely acknowledged in s 38; the source of the

duty to afford procedural fairness is statutory; and therefore there is no

duty of procedural fairness in this case.

147 The respondents' submission requires consideration of the debate as to

whether the source of the duty to afford procedural fairness is the common

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law or statute. In the leading case of Kioa v West (1985) 159 CLR 550

Mason J favoured the common law (at 584 - 585) while Brennan J

favoured statute (at 620). However, that debate was resolved, at least in

this State, in Stewart v Ronalds [2009] NSWCA 277,76 NSWLR 99 at [70J

where Allsop P (Hodgson JA and Handley AJA agreeing) proceeded "on

the basis that the common law is the source of the duty to afford

procedural fairness". Although his Honour noted that that important

question did not receive detailed treatment in argument in that case, the

decision is binding upon this Court. Consequently, even if the the

Minister's power to recommend the making of a SEPP is not statutory, this

is not a reason for excluding the rules of procedural fairness. However, as

stated above at [102], in my opinion, the Minister's power to recommend is

statutory: it is implicit in s 38.

148 Next, the respondents submit that procedural fairness obligations do not

attach to an exercise of power of this kind (i.e. recommending the making

of a SEPP) because the power is legislative in character and results in a

planning instrument of general application: Kioa v West (1985) 159 CLR

550 at 584-5, 620; Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA

6, 46 NSWLR 78 at 91 - 100; Save the Showground for Sydney Inc v

Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 51 - 53;

Transport Action Group against Motorways Inc v Roads and Traffic

Authority [1999] NSWCA 196, 46 NSWLR 598 at 622 - 625; Minister for

Local Government v South Sydney City Council [2002J NSWCA 288, 55

NSWLR 381 at 439; McGuiness v State of New South Wales [2009]

NSWSC 40,73 NSWLR 104 at 119 -128.

149 In Kioa v West Mason J said at 584:

The law has now developed to a point where it may be acceptedthat there is a common law duty to act fairly, in the sense ofaccording procedural fairness, in the making of administrativedecisions which affect rights, interests and legitimate expectations,subject only to the clear manifestation of a contrary statutoryintention.... But the duty does not attach to every decision of anadministrative character. Many such decisions do not affect therights, interests and expectations of the individual citizen in a direct

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and immediate way. Thus a decision to impose a rate or adecision to impose a general charge for services rendered toratepayers, each of which indirectly affects the rights, interests orexpectations of citizens generally does not attract this duty to actfairly. This is because the act or decision which attracts the duty isan act or decision:

00' which directly affects the person (or corporation)individually and not simply as a member of the public or aclass of the public. An executive or administrative decisionof the latter kind is truly a 'policy' or 'political' decision andis not subject to judicial review.

(Sa/emi [No.2], per Jacobs J.)

150 Mason J added at 585:

When the doctrine of natural justice or the duty to act fairly in itsapplication to administrative decision-making is so understood, theneed for a strong manifestation of contrary statutory intention inorder for it to be excluded becomes apparent. The critical questionin most cases is not whether the principles of natural justice apply.It is: what does the duty to act fairly require in the circumstances ofthe particular case? It will be convenient to consider at the outsetwhether the statute displaces the duty when the statute contains aspecific provision to that effect, for then it will be pointless toinquire what the duty requires in the circumstances of the case,unless there are circumstances not contemplated by the statutoryprovision that may give rise to a legitimate expectation. However,in general, it will be a matter of determining what the duty to actfairly requires in the way of procedural fairness in thecircumstances of the case. A resolution of that question calls foran examination of the statutory provisions and the interests which Ihave already mentioned.

151 Brennan J said at 620:

The legislature is not likely to intend that a statutory power of astrictly legislative nature be conditioned on the observance of theprinciples of natural justice for the interests of all members of thepublic are affected in the same way by the exercise of such apower: et Bates v Lord Hailsham. But the legislature is more likelyto intend the exercise of a statutory power of an executive,administrative or quasi-judicial nature to be so conditioned if anexercise of the power singles out individuals by affecting theirinterests in a manner substantially different from the manner inwhich the interests of the public at large are affected ....

152 In Save the Showground there was a change of government policy that

resulted in the making of a state environmental planning policy (SEPP 47)

which effected a rezoning of Sydney Showground to permit development

for certain purposes. The validity of SEPP 47 was unsuccessfully

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challenged on the ground that it was made in circumstances which

involved a denial of procedural fairness said to be based upon a legitimate

expectation that the applicants would be consulted before the policy was

made. Gleeson CJ said at 35: "Our task is to determine, in the light of the

argument presented by the appellant, whether the making of SEPP 47 was

a valid exercise of a power which the Parliament has vested in the

Governor, acting on the advice of the Minister." It was held that the

Executive could not by promise fetter itself in the exercise of discretion to

change policy. 8eazley JA (Powell JA agreeing) also said at 66:

Assuming the absence of circumstances giving rise to a legitimateexpectation, the almost untrammelled role for policy and politicaldecisions without the constraint of judicial review finds expressionin a number of authorities ...This approach applies equally to all policy areas, includingplanning matters such as are involved here ...... The power to initiate either the SEPP or the REP processlies with the Minister or the Director in accordance with theprovisions of ss 37 and 40 respectively. There is nothing in thelegislation which prevents the Minister or Director from abandoningeither process, nor is there any procedure which must be followedif one or other process is abandoned. A decision to abandon is asmuch a matter of policy as is a decision to instigate the process,and is one which a government is free to make, unfettered by anyprevious representation or promise ....

153 Mason J's example in Kioa v West of a decision to enforce a rate or

general charge for services on ratepayers seems to me to be of a different

character to a decision to recommend the making of a SEPP to effect a

rezoning to permit development. The reality is that a particular developer is

usually the proponent of the rezoning and directly affected by the decision.

That is reflected in the routine joinder of the developer in proceedings such

as these.

154 It is unnecessary to reach a concluded view about the applicability of

principles of apprehended bias to the exercise of power by the Minister to

recommend the making of a SEPP because, assuming that they are

applicable, in my opinion the applicant's contention that there is a

reasonable apprehension of predetermination of the relevant kind fails on

the facts.

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155 It is not enough to point to matters that suggest a predisposition by the

Minister toward a particular outcome or a strategic policy towards

delivering certain results. Apprehension of bias of the relevant kind only

arises when the decision-maker's mind appears closed in the sense of not

being open to persuasion. In Minister for Immigration and Multieultural

Affairs v Jia Legeng [2001] HCA 17, 205 CLR 507 at [72] Gleeson CJ and

Gummow J (Hayne J agreeing) said:

The state of mind described as bias in the form of prejudgment isone so committed to a conclusion already formed as to beincapable of alteration, whatever evidence or arguments may bepresented. Natural justice does not require the absence of anypredisposition or inclination for or against an argument orconclusions.

156 In MeGovem v Ku-ring-gai Council [2008] NSWCA 209,72 NSWLR 504

Spigelman CJ said (omitting citations):

22 .... a "fair and unprejudiced" mind is not necessarily a mind whichhas not given thought to the subject matter or one which, havingthought about it, has not formed any views or inclination of mindupon or with respect to it.

23 The "open to persuasion" test is an appropriate formulation for biasby prejudgment, to which the dual "might" test of apprehendedbias must be applied; that is, that an independent observer mightreasonably apprehend that the decision-maker might not be opento persuasion.

157 The general principles relating to apprehended bias must be understood in

their application to the particular statutory context and the particular

position of the Minister in his policy making role of recommending the

making of SEPPs. In MeGovem Spigelman CJ said:

6 ... The case law on judicial decision-making is not a starting pointwhen determining the application of the apprehended bias test in aspecific statutory context. The statute must be part of theassessment from the outset and not treated as some kind ofqualification of a prima facie approach.

7 How the apprehended bias test is applied is ...affected by thestatutory functions being performed and by the identity and natureof the decision maker who is obliged by statute to perform thosefunctions. The content of what the test requires varies from onecontext to another by a process involving, and usually determinedby, statutory interpretation.

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158 In Jia Legeng Hayne J said at [187]:

It is critical... to understand that assessing how rules about bias,or apprehension of bias, are engaged depends upon identificationof the task which is committed to the decision-maker. Theapplication of the rules requires consideration of how the decision-maker may properly go about his or her task and what kind ordegree of neutrality (if any) is to be expected of the decision-maker.

159 In the same case Gleeson CJ and Gummow J said at [62] - [63]:

In [R v Anderson Ex parte /pec-Air pty Ltd (1965) 113 CLR 177 at189] it was also said that there is "a significant difference betweena discretion given to a minister and one given to a departmentalhead". The context in which that difference was being consideredconcerned the right to act on the basis of governmental policy/theimplication being that, when a power is reposed in a Minister, thestatute, in the absence of an indication to the contrary, would betaken to contemplate that the Minister would be entitled, within thelimits of any other constraints that may be found in the statute, toact in accordance with such policy. There are otherconsequences that flow from the circumstance that a power isvested in, and exercised by, a Minister.· Relevantly to the presentcase, they include the consideration that the conduct of a Ministermay need to be evaluated in the light of his or her political role,responsibility and accountability.

160 The role of recommending the making of SEPPs involves a policy making

function that is associated with high level political decisions of significance

to the State. In exercising the function of making such recommendations

the Minister operates in the arena of public debate, political controversy

and democratic accountability. Elected officials have political ties and are

expected to "support particular views as to what is in the best interest of

the community": R v West Coast Council; Ex parte Strahan Motor Inn

(1995) 87 LGERA 383 at 389 per Zeeman J. Ministerial decisions are not

subject to the same requirements of manifest impartiality as are required

by law of the decisions of courts, tribunals and bureaucratic decision-

makers and tribunals

161 In CREEDNZ Inc V Governor-General [1981] 1 NZLR 172 the New

Zealand Court of Appeal considered the validity of an Order in Council

made under s 3 of the National Development Act, which applied the Act to

a proposed smelter project. That Act was comparable to Part 3A of the

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EPA Act. It was argued in CREEDNZ by reference to public statements of

Ministers which were recorded in press clippings, that members of the

Executive Council had predetermined the advice they gave to the

Governor-General in Council and the consent expressed to the making of

the Order in Council under s 3 of the National Development Act: at 191 -

192. Cooke J stated at 179:

The references, in the amended statement of claim to a realprobability or suspicion of predetermination or bias are beside thepoint in relation to a decision of this nature at this governmentallevel. Projects of the kind for which the National Development Actis intended, whether Government works or private works, are likelyto be many months in evolution. They must attract considerablepublic interest. It would be naive to suppose that Parliament canhave meant Ministers to refrain from forming and expressing, evenstrongly, views on the desirability of such projects until the stage ofadvising on an Order in Council.

In relation to decisions under s 3(3) I think that no test ofimpartiality or apparent absence of predetermination has to besatisfied. Any other approach would make the legislationpractically unworkable. The only relevant question can be whetherat the time of advising the making of the Order in Council theMinisters genuinely addressed themselves to the statutory criteriaand were of the opinion that the criteria were satisfied. If they didhold that opinion at that time the fact that all or some of them anyhave formed and declared the same opinion previously does notmake the order invalid. No doubt, if Ministers had approached thematter with minds already made up, the inference would readily,be drawn that they could not genuinely have considered thestatutory criteria when advising the making of the Order in Council.But the newspaper reports fall short of showing closed minds. Andthe terms of the Order in Council suggest that the minds of theMinisters were not closed.

162 Richardson J stated at 194:

What is fair in a given situation must depend on thecircumstances. The application of the rules against bias must betempered with realism. It would be unrealistic to expect Ministersto have completely open minds as to the criteria set out in s 3(3) ofthe National Development Act or as to the desirability in the publicinterest of a proposed work. An assumption that the Governor-General in Council may be predisposed to apply the provisions ofthe National Development Act to a project is not enough. It is notexpected that Ministers will approach their consideration of theapplication under s 3(3) with perfect detachment. Before thedecision can be set aside on the grounds of disqualifying bias itmust be established on the balance of probabilities that in fact theminds of those concerned were not open to persuasion and so, if

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they did address themselves to the particular criteria under thesection, they simply went through the motions.

163 The Court held that the Ministers had genuinely addressed themselves to

the statutory criteria, and the evidence before the Court did not show that

the Ministers failed to consider the application with minds open to

persuasion.

164 In Franklih v Minister for Town and Country Planning [1948] AC 87 the

House of Lords held that a Minister was not subject to the bias rule when

considering a report on his proposal to site a larger "new town" in a certain

area, although the Minister was under a duty to give genuine consideration

to the report. It was also held that the Minister had discharged this duty,

despite his pre-report speech indicating that his proposal would prevail

over all objections: at 105. In Jia Legeng, a majority of the High Court

described Franklin as a "useful reminder" of how the requirements of bias

are modified when applied to Ministers: Gleeson CJ and Gummow J at

539 (Hayne J agreeing).

165 The reasonable fair-minded lay observer postulated for the purposes of the

apprehended bias test is one who is "properly informed": see Hot Holdings

Pty Ltd v Creasy [2002] HCA 51, 210 CLR 438 at 459 per McHugh J. In

the context of the present case, the notion of being "properly informed"

must include a proper appreciation of the role of strategic government

policy and environmental planning.

166 These matters must be assessed in the context of a legislative scheme

which expressly contemplates strategic planning and policy making. The

objects of the EPA Act, as set out in s 5(a), relevantly include:

to encourage:

(i) the proper management, development and conservation ofnatural and artificial resources, including agricultural land,natural areas, forests, minerals, water, cities, towns and.villages for the purpose of promoting the social andeconomic welfare of the community and a betterenvironment,

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--- --- .------------------------------------

,. .•.- ...•..-> ,

(ii) the promotion and coordination of the orderly and economicuse and development of land,

(iv) the provision of land for public purposes,

(vi) the protection of the environment, including the protectionand conservation of native animals and plants, includingthreatened species, populations and ecological communities,and their habitats

167 Section 7 provides that the Minister is charged with the responsibility of

"promoting and co-ordinating environmental planning and assessment" to

fulfil those objects. In discharging that responsibility, the functions of the

Minister include:

7 Responsibility of Minister

(c) to promote the co-ordination of the provision of public utilityand community services and facilities within the State,

(d) to promote planning of the distribution of population andeconomic activity within the State...

168 Section 117 contemplates that the Minister may direct councils as to the

way in which certain functions, including the preparation of LEPs, are to be

exercised. This may include a direction to include in a planning proposal

provisions which will "achieve or give effect to such principles or such

aims, objectives or policies, not inconsistent with [the EPA Act], as are

specified in the direction": s 117 (2)(b).

169 Consistently with these statutory objectives and functions, the Minister was

part of a Government which had endorsed high level strategic documents

to guide population and economic growth, planning and conservation in

the Lower Hunter Region. The LHRS was made in October 2006. The

preface to the LHRS describes the strategy as:

an agreed NSW government position on the future of the LowerHunter. It is the pre-eminent planning document for the LowerHunter Region and has been prepared to complement and informother relevant State planning instruments.

170 Part 13 of the LHRS describes the strategy for implementation:

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- - ------------

•••• - '..i'

The Lower Hunter Regional Strategy will be implemented primarilythrough local environmental plans, development control plans,through the State Infrastructure Strategy and through fundscollected as developer contributions.

IMPLEMENTATION BY COUNCILSThe Lower Hunter Regional Strategy provides the framework andcontext for statutory planing controls and developmentassessment of individual projects and proposals. It will guide thepreparation of a new local environmental plans prepared by localcouncils.

171 As anticipated in the LHRS, on 26 February 2007 the Minister issued a

s 117 direction (Direction No 30) requiring councils to implement the

LHRS.

172 As the terms of the LHRS make clear, the strategy did not purport to

override the statutory procedures for the determination of particular

development proposals and proposed instruments under the EPA Act.

The LHRS was rather intended to provide a strategic policy framework for

the coordinated administration of the EPA Act. This is confirmed by the

terms on which the Minister publicly endorsed the LHRS in February 2010:

Minister for Planning, Tony Kelly, said the Government has beenlooking at the existing regional strategy following legal action inregard to approvals for the two sites."That action affected a small number of development sites wherememorandums of understanding (MOUs) and deeds were inplace", the Minister said."The existing regional strategy, independently of those MOUs anddeeds, continues to provide a clear basis for all sites in thestrategy to be considered on their merits and assessed accordingto law."

173 I do not think that a fair minded observer of ttle process could reasonably

conclude that the stated policy of the Government, as embodied in the

LHRS and the LHRCP, indicated that the Minister would not consider the

merits of individual proposals, as and when required, pursuant to the EPA

Act. At the core of the applicant's case is the notion that a government

policy which identifies strategic planning opportunities in particular areas

necessarily gives rise to an inference that those charged with exercising

statutory functions will perform those functions according to fixed- 75-

preconceptions and without reference to the merits of particular proposals.

If that were true, no planning policies could be promulgated without giving

rise to an apprehension of such a kind.

174 The fact that the LHRS uses "unqualified statements" (the applicant's

description) as to the strategic planning opportunities identified in the

document does not support any apprehension of predetermination in the

relevant sense. In my view, having regard to the passages referred to

above, the terms of the Minister's media release and the policy context of

the document, a fair minded reasonable observer would not think that the

Minister might have already formed a conclusion, in respect of each and

every possible planning outcome described in the strategy, which was

incapable of alteration, whatever evidence or arguments may be

presented.

175 The applicant relies on the fact that certain policies and other documents

between 2009 and 2010 referred to the prospect that the planning

agreement procedure under the EPA Act would be used as the preferred

mechanism for facilitating the conservation land offsets envisaged in the

LHRS and the LHRCP. No logical connection exists between the use of

the statutory planning agreement procedure and the proposition that the

Minister had a relevantly closed mind about the merits of the rezoning

proposal. The use of that procedure was consistent with the Minister

dealing with the proposal for the SEPP amendment in accordance with the

relevant statutory procedures, including by securing development

contributions through a planning agreement.

176 The applicant suggests that certain references in documents could give

rise to a reasonable apprehension that the Government and the Minister

were "committed to seeing through the Huntlee Development

notwithstanding the decision in Gwandalan and the 2009 Orders". The

suggestion seems to be that it is inappropriate for the Minister to determine

a fresh application for rezoning, in circumstances where a previous

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application in respect of the same land had been determined favourably

but then set aside by the Court. This is no more than a conventional

operation of decision-makirig under the EPA Act following the invalidation

of a decision by the Court. in my view, a reasonable observer properly

informed about the circumstances (including the nature of judicial review)

would not draw any adverse conclusion about the open-mindedness of the

Minister from the fact that a separate instrument had been invalidated in

the past. Neither Gwandalan nor the 2009 Orders can be understood as

indicating to an informed observer that the Minister was precluded from

considering any future applications in respect of the same land.

177 The applicant places particular reliance on a reference in the briefing note

that was before the Minister at the time of the Recommendation, to the

previous SEPP instrument and concept plan approval having been

invalidated "due to matters of procedure". To the extent that it is

suggested that the description is inaccurate or dismissive of the

invalidation of the past decisions (or, by extension, the decision in

Gwandalan), I do not accept the submission. It is a not inaccurate

description of what had occurred. The previous instrument and decision

had been set aside on the basis that the grounds of review and

surrounding facts were relevantly equivalent to those in Gwandalan. The

successful grounds in Gwandalan involved a reasonable apprehension of

bias and taking into account an irrelevant consideration. Those grounds of

review relate directly to the procedure adopted by the decision-maker in

reaching the decision under review. The bias rule is an aspect of

procedural fairness. As noted in Aronson, Dyer and Groves, Judicial

Review of Administrative Action, 4th ed (2009), Sydney Lawbook Co, at

[7.20] (citing Kioa v West at 622 and other authorities), the hearing rule

and the bias rule "can be described as procedural, in a broad sense, in

that they address the manner in which a decision is made and not the

merits of the decision itself'.

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178 The applicant criticises the sufficiency of the material before the Minister

regarding the merits of the rezoning proposal. In a related proposition, the

applicant contends that the fact that the SSS Study was not before the

Minister provides a basis for inferring that the Minister had predetermined

the matter. The criticisms of the sufficiency of the material before the

Minister do not provide a sound basis for drawing the extreme conclusion

that the Minister made the Recommendation without regard to the merits

of the proposal. It does not follow that because the Minister received a

condensed assessment of the proposal when a more detailed study

existed, the Minister must have predetermined the application.

179 In my view, there was nothing in evidence which might have caused a

reasonable person to apprehend that the Minister might make the decision

to recommend the making of the Huntlee MD Amending SEPP other than

on the factual and legal merits. In particular:

(a) there is nothing untoward in the briefing note signed by the

Deputy Director-General and the Minister in November 2009,

after consent orders were made on 19 October 2009 in

Gwandalan, which confirmed:

The Department considers that the [LHRS] remains asound strategy and its validity is not dependent on theexistence of the Memorandum of Understanding or Deed ofAgreement. ..Moving forward should the developmentsproceed as envisaged under these [LHRS], any landoffsets would be facilitated through the preparation of VPAsin accordance with s 93F ...

That is consistent with the objects in s 5(a)(ii) and (iv) of the

EPA Act, namely, the promotion and co-ordination of the

orderly and economic use and development of land and the

provision of land for public purposes.

(b) Likewise with the Director-General's confirmation to JBA by

letter dated 22 December 2009 that the NSW Government

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remained committed to the LHRS and LHRCP "and recently

re-endorsed both";

(c) Similarly with the Government's media release titled "Lower

Hunter Regional Strategy" dated 18 February 2010, which

confirmed that "the existing regional strategy independently

of ... MOUs and deeds, continues to provide a clear basis

that all sites in the strategy to be considered on their merits

and accessed according to law" and that "conservation

offsets [would] now be facilitated through the preparation of

Voluntary Planning Agreements within the framework of the

[EPA Act]";

(d) These comments apply to both the Deputy Director-General's

letter of 26 February 2010 to interested councils and others

in relation to the effect of the decision in Gwandalan, as well

as the briefing note of the same date. The effect of the

Court's decision in Gwandalan was not such that the Minister

.could never again make a decision in respect of an

application designed to overcome the deficiencies which led

to the invalidity of a previous approval.

180 Accordingly I reject Ground 3.

ORDERS

181 The applicant has been successful on Grounds 1 and 2. I propose the

following orders:

1. Declaration that the decision by the first respondent to

recommend that the Governor amend State Environmental

Planning Policy (Major Developments) 2005 through the State

Environmental Planning Policy (Major Developments)

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Amendment (Huntlee New Town Site) 2010, gazetted on 31

December 2010, is void.

2. Declaration that State Environmental Planning Policy (Major

Developments) Amendment (Huntlee New Town Site) 2010,

gazetted on 31 December 2010, is void.

3. Order that the respondents pay the applicant's costs of the

proceedings.

4. The exhibits may be returned.

182 If the parties propose alternative orders to give effect to my judgment, I will

hear them tomorrow morning at 10am. Otherwise the orders will be as I

have proposed.

I CERTIFY THAT THIS ANDTHE 14 PRECEDING PAGES AREATRUE COpy OF THE REASONS FORTHE JUDGMENT OF THE HONOURABLEJUSTICE P.M. BISCOE .

......~Date.J..•~.L~r~Qll

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